A vaccine certificate or passport provides proof that you’ve been immunized against a contagious infection. It can be a document in either paper or digital form that you may be required to show to authorized parties in order to access a service, begin or continue employment, or enter a venue.

Employers, landlords and other services providers have an obligation to protect their employees, tenants and customers. Reasonable public health and safety measures taken to prevent and reduce the spread of COVID-19, especially in accordance with directives from the Chief Medical Officer of Health, are unlikely to violate The Yukon Human Rights Act.

While it is impossible to list every circumstance under which a person could file a human rights complaint in relation to vaccine mandates or proof of vaccination requirements, if a person is facing discrimination on the basis of a protected characteristic under the Act, they may have a valid human rights complaint. For instance, if a person has pre-existing medical conditions or disabilities such that a medical professional advises against vaccination, or has a sincerely held religious belief that prevents them from receiving a vaccine, they may be eligible for an accommodation from vaccine requirements. If your employer, landlord, or a service provider fails to accommodate your particular needs to the point of undue hardship, an option may be to file a human rights complaint with the Commission.

A singular belief or personal preference around vaccines, such as vaccine effectiveness, safety, or questions around the legitimacy of governments to require proof of vaccination, are not within the jurisdiction of the Act. Please seek the advice of a lawyer for these concerns.

The Commission will not accept complaints regarding opposition to vaccination based on personal preference, or any other reason that is not related to a characteristic protected under the Act.

The Act protects Yukoners from discrimination on the basis of protected characteristics. This means that a complaint will only be accepted under the Act if a person can show a connection between unfavourable treatment (e.g. termination if not vaccinated) and a protected characteristic (e.g. disability, family status, religious belief or creed, etc.). An example of a situation where someone may file a successful human rights complaint is if an employer only requests proof of vaccination from racialized individuals. However, if everyone is asked to provide proof of vaccination, this is not discrimination under the Act.

An employer can request proof of vaccination, but if a person cannot be vaccinated due to a disability, or another relevant protected characteristic, employers have the duty to accommodate that person. This applies to service providers and landlords as well. When requesting accommodation, explain your needs or restrictions and keep the lines of communication open. A person seeking an accommodation on the ground of disability may need to provide medical information which indicate restrictions to confirm that they have a disability that prevents them from being vaccinated. Disclosure of a diagnosis is not required.

You should inform the person requesting proof of vaccination (your employer, a service provider, a landlord, etc.) that you cannot receive the vaccine due to a disability, religious belief etc. and make a request for accommodation.

If an employer, service provider, or landlord is implementing proof of vaccination policies to address specific safety concerns, they will still have an obligation to accommodate those who are unable to get vaccinated for reasons relating to a protected characteristic to the point of undue hardship. Seeking accommodations should be a collaborative process between the parties and be based on the individual needs of those involved. For example, employers may accommodate an employee from a mandatory vaccination policy by creating a requirement for face masks or other personal protective equipment, physical distancing, modifying shifts and schedules, requiring periodic tests for COVID-19, or setting up remote work options. These are just some examples, and may not be applicable in every situation.

Case law states that creed is a sincerely held belief that is linked to a person’s self-definition, governs one’s conduct and practices, and provides a connection to a community with a shared system of belief. Courts and tribunals have routinely determined that political opinions or beliefs cannot be considered a “creed” within the meaning of human rights legislation, nor can personal opinions such as natural immunity, which are distinct from a “recognizable cohesive belief system or structure”, be considered a “creed”.

While political belief, association and activity are protected characteristics under the Act, someone’s personal preference not to receive the vaccine is not a political belief, but a personal choice.   In order to successfully establish a claim of discrimination on this ground, a person would have to demonstrate that they suffered unfavourable treatment because of the political belief, association or activity, and not because of a failure to get vaccinated or to provide proof of vaccination status itself. Examples of political belief, association or activity might include participating in rallies or protests.

Employers, landlords, and service providers are all governed by human rights legislation, which prohibits discrimination based on protected characteristics, as well as privacy legislation, which governs the collection, storage, and use of personal information. Privacy, however, is not a protected characteristic under the Act. Please contact the Privacy Commissioner’s Office or refer to the joint statement by federal, provincial, and territorial privacy commissioners published May 21, 2020 for information on your right to privacy.

Balancing the rights of people who have not been vaccinated due to a protected characteristic, such as disability, while ensuring individual and collective rights to health and safety can be tricky. As a neutral body, the Commission will answer any questions about human rights law or the complaint process that either party may have. The Commission will also provide the party against whom a human rights complaint has been accepted for investigation with an opportunity to provide a response to the complaint. A response can include information about what accommodations were offered and available. You will also be able to provide information explaining why you could not accommodate customers, tenants, or employees who are unable to wear masks or be vaccinated, including why it would be an undue hardship to do so. It is important to note that hardships such as concerns about safety or cost must be real and demonstrable, not just perceived.

The Act prohibits discrimination in all aspects of employment. This includes discrimination towards an employee from a customer or by an employer towards a contractor. Consequently, if you have hired a contractor, or are receiving services from one, a request for an accommodation from proof of vaccination on the basis of a protected characteristic may require accommodation to the point of undue hardship.

The Act does not apply to “the employment of a person to provide services in a private home or in any exclusively religious, charitable, educational, social, cultural or athletic organization” or “the choice by an occupant of a private home of a boarder or tenant to occupy part of the home”.

Complaints that relate to federal mandates must be filed with the Canadian Human Rights Commission and not the Yukon Human Rights Commission. For more information regarding the Canadian Human Rights Commission complaint process, please visit their website at https://www.chrc-ccdp.gc.ca/en.

The Commission investigates discrimination under the Yukon Human Rights Act. The Commission does not have jurisdiction to enforce constitutional or international human rights instruments, such as the Canadian Charter of Rights and Freedoms, the Universal Declaration of Human Rights, the Rome Statute, etc. Please seek the advice of a lawyer for these concerns.

Although anyone is free to file a complaint with the Commission at any time, the Yukon Human Rights Commission will only accept a complaint for investigation if an individual alleges discrimination on the basis of a protected characteristic (i.e. disability or religion). The Yukon Human Rights Commission does not have jurisdiction to accept a complaint for investigation if the refusal to wear a mask is due to a personal preference, as that circumstance does not involve a protected characteristic.

A person making a complaint on the basis of disability should be able to provide medical information to the Commission confirming that they have a disability that prevents them from wearing a mask. They should also be able to show a reasonable attempt to receive accommodation, recognizing that accommodations are not required to be perfect or ideal.

A person making a complaint based on the assertion that wearing a mask interferes with a religious belief will need to provide information to the Commission showing that not wearing a mask is a sincerely held belief related to their religion. Again, that person should be able to show a reasonable attempt to receive accommodation, recognizing that not all resolutions will be perfect.

A party against whom a complaint has been made will have an opportunity to provide a response to an accepted complaint. This includes information about what accommodations were offered and available. They will also be able to provide information explaining why they could not accommodate customers, tenants or employees who are unable to wear masks, including why it would be an undue hardship to do so. It is important to note that hardships such as concerns about safety must be real, not just perceived.

Employers, landlords and service providers may request medical information to support a request for such an accommodation. However, they are not entitled to know a diagnosis as per human rights law. A medical note confirming that the employee, tenant or customer is unable to wear a mask or get vaccinated for medical reasons should suffice. Employers, landlords and service providers must protect private medical information. Individuals relying on medical exemptions are advised to carry a doctor’s note to support their request for accommodation.

Rules and requirements set by an employer, landlord or service provider must consider accommodations for persons on the basis of a protected characteristic to the point of undue hardship. For example, some individuals may have a diagnosed medical condition, such as a serious respiratory condition, that prevents them from wearing a mask.

If a service provider has established a “mandatory mask” policy for customers, a service provider should prominently display their policy together with a means of discussing possible exemptions or accommodations.

It is also important to inform employees about the policy, how to implement it, and what to do when a person wants to enter without a mask. In many cases, it will be obvious that a customer is unable to wear a mask, such as with infants and children under the age of five (5). In cases that are not obvious, an employee may wish to have a manager or supervisor respond to the customer.

Service providers are not entitled to know a customer’s specific medical diagnosis. If a service provider determines that a customer without a mask cannot be admitted to their business or service, they should attempt to provide the service in an alternate way – unless doing so creates an undue hardship.

Residential facilities disproportionately house people who identify with protected characteristics under the Act, including inmates, people with disabilities, elderly people, children, and other vulnerable groups. Care institutions have a duty to accommodate a person’s disability-related needs, unless doing so would cause undue hardship based on cost or health and safety.

It is important that human rights laws balance an individual’s right to non-discrimination and civil liberties with public health and safety considerations. As such, decisions should be based on the evidence-based risks associated with COVID-19. Restrictions such as limiting individuals from visiting their loved ones may be justified for health and safety reasons, particularly if such restrictions are based on up-to-date information from medical and Public Health officials. However, there may be instances where certain individuals may require accommodations, such as increased access to phones or online contact with loved ones, or continued access to their support persons.

It is not a violation of the Act to lay off employees due to a lack of work caused by the impacts of COVID-19, so long as employees are not selected for lay-off based on a protected characteristic. Furthermore, the Act does not require employers to provide additional financial assistance to employees who are impacted by COVID-19. Individuals who are in a crisis or emergency situation because of COVID-19 can contact the Yukon Human Rights Commission for referrals to agencies that may be able to assist.