Audit of the ECCC application and implementation of the Policy on COVID-19 Vaccination for the Core Public Administration – administration of accommodation requests

Executive summary

Context

This report presents the findings of an internal audit of the Environment and Climate Change Canada (ECCC) application and implementation of the Policy on COVID-19 Vaccination for the Core Public Administration (Vaccination Policy) with respect to the administration of accommodation requests. The audit was conducted between June 2022 and July 2022 and is included in the Audit and Evaluation Plan 2022 to 2027.

The audit objective was to assess the application of the management control framework developed to support Vaccination Policy implementation, with a focus on the governance and the application of procedures established to administer the accommodation requests received from not fully vaccinated employees based on a certified medical contraindication, on religious grounds or on other prohibited grounds for discrimination, as defined under the Canadian Human Rights Act.

Why it is important

COVID-19 vaccination was a priority for the federal government, to support employee health and safety. The effective administration of the Vaccination Policy at the departmental level was the responsibility of each deputy head. Two of the key elements that were developed to support the achievement of the Vaccination Policy objectives and expected results were robust governance mechanisms and the effective development and application of processes to support the administration of accommodation requests. At ECCC, the Human Resources Branch supported the Deputy Minister in implementing the Treasury Board policy and the Directive on the Duty to Accommodate for vaccination accommodation requests.

The Vaccination Policy was suspended as of June 20, 2022, following a review of the public health situation. The Government of Canada will continue to monitor and assess the need for additional public health measures, including the possible reintroduction of vaccination mandates. The audit provides insights on the Department’s management of duty to accommodate requests in the context of the Vaccination Policy.

What we found

Governance was established and operated as intended to support the administration of the Vaccination Policy with respect to duty to accommodate requests. The role of the Human Resources Expert Review Committee (HRERC) was one of recommendation to management only. The review of all requests for accommodation by the HRERC was found to be an effective mechanism for enabling the management of the Vaccination Policy related duty to accommodate requests in a consistent, objective and uniform manner across the Department. In addition, having a lawyer from the Centre of Expertise for Labour and Employment Law attending all committee meetings to provide legal advice on all the requests likely contributed to increasing the confidence level in the recommendation provided.

The processes in place for the application of the duty to accommodate requirements were aligned with policy requirements. The templates developed by the Human Resources Branch supported managers in fulfilling their responsibilities.

In most cases, the documentation supporting duty to accommodate requests received as a result of the Vaccination Policy was appropriate and sufficient to support decision making. In cases where documentation was not sufficient, the HRERC recommended that the manager obtain additional information. After new information was obtained, if the established criteria were still not met, the HRERC recommended that the requests be denied. The HRERC’s review and analysis was conducted within a reasonable period of time and managers were informed of the HRERC’s recommendation in a timely manner. Temporary measures were in place for employees requesting a duty to accommodate while a decision on their request was pending. Those that were required to access an ECCC worksite were required to undergo regular rapid testing no less than 3 times a week. Duty to accommodate requests and decisions were monitored and senior management was informed in a consistent, ongoing manner to support the implementation of the Vaccination Policy and the Directive on the Duty to Accommodate.

Opportunity for consideration

The report does not put forward recommendations for action. Rather, it presents an opportunity for consideration related to good information management practices. Specifically, consideration should be given in future similar initiatives to identify all the relevant documentation related to an accommodation request to be retained and stored in a central location, including milestone communications, rationales and decision letters to employees. This would mean that there is a complete file for each request maintained centrally as an audit trail.

1. Background

In an effort to protect the health and safety of employees and to improve vaccination rates among employees in the core public administration, the Treasury Board of Canada issued the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police (the Vaccination Policy), which came into effect on October 6, 2021. As per the Vaccination Policy, all employees of the core public administration, including the Royal Canadian Mounted Police, were required to be fully vaccinated unless accommodated based on a certified medical contraindication, religion or another prohibited ground for discrimination as defined under the Canadian Human Rights Act. That requirement applied whether employees were teleworking, working remotely or working on-site. The mandatory COVID-19 vaccination requirements also applied to contracted personnel who required access to federal government worksites to perform work for the Government of Canada and became effective on November 15, 2021.

By October 29, 2021, all employees in the Core Public Administration, including employees on Other Leave With Pay (699) for reasons related to the pandemic, were required to attest to their vaccination status in the Government of Canada’s Vaccine Attestation Tracking System (GC‑VATS) or provide their status to their managers if they did not have access to the system. Other attestation deadlines were defined depending on whether an employee was already on leave on the date the Vaccination Policy came into effect, had requested an accommodation or for other reasons related to their current position.

Those employees who were not compliant with the Vaccination Policy or that did not request an accommodation by October 29, 2021 were placed on administrative leave without pay as soon as November 15, 2021 and their accesses to ECCC facilities and network were restricted. Similarly, employees who requested accommodations and whose requests were denied, were also placed on administrative leave without pay. The consequences of non‑compliance were covered in the Audit of the ECCC Application and Implementation of the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police – Leave Without Pay, which was completed in June 2022.

In compliance with the Vaccination Policy and the TBS Directive on Duty to Accommodate, organizations were required to assess and process requests for accommodation received in response to the Vaccination Policy.

On June 20, 2022, the Government of Canada suspended the Vaccination Policy based on a review of the public health situation and the vaccination rates across Canada. As a result, ECCC employees were no longer required to be fully vaccinated as a condition of employment and employees who had been placed on administrative leave without pay could resume regular work duties with pay and have their access to ECCC facilities and network reinstated.

With the suspension of the Vaccination Policy, accommodation measures put in place due to the policy, as well as the review of outstanding accommodation requests, came to an end.

Since the pandemic is not over and there remains the possibility of a resurgence of cases or the emergence of new variants of concern, the Government of Canada announced that it will continue to monitor the evolution of the COVID-19 virus and the need for additional public health measures, including reintroduction of the vaccination mandates, as appropriate.

Key roles and responsibilities

The following paragraphs provide an overview of key roles and responsibilities for employees, delegated managers and human resources, as they pertained to the implementation of the Vaccination Policy for duty to accommodate requests.

ECCC employees were responsible for disclosing their vaccination and testing status. Employees who requested accommodation based on medical contraindication, religion or another prohibited ground of discrimination as defined under the Canadian Human Rights Act were responsible for informing their manager of their need for accommodation and to provide complete and accurate documentation to support their requests. They were also required to notify their manager if their accommodation needs changed. Employees were responsible for requesting accommodations via the GC-VATS system. Employees who did not have access to the system were responsible to communicate with their managers and to provide them with a printed form of their request.

Employees who were granted an accommodation were required to cooperate and collaborate in good faith to identify one or more means to accommodate their needs, which included mandatory testing and the reporting of the results, as per Health Canada’s testing protocol.

Employees whose accommodations requests were denied, were required to attend an online training session on the COVID-19 vaccination within 2 weeks after the attestation deadline. After that 2-week period, employees who remained unvaccinated were to be placed on administrative leave without pay and have their pay suspended and their access to departmental networks and physical workplaces restricted. As well, employees who were partially vaccinated had 10 weeks to receive their second vaccination dose. If they did not receive the second dose within this time, they were also to be placed on administrative leave without pay with similar restrictions imposed. Employees who were placed on administrative leave without pay and subsequently became partially vaccinated were to be reinstated and have their pay access to networks and physical workplaces reinstated.

Managers were responsible for reviewing employee vaccine attestations and for responding to requests for accommodation in accordance with the Duty to Accommodate Policy. They were required to inform the employee of their obligations, gather relevant information, make decisions as to whether the duty to accommodate applied and implement the decision by identifying the appropriate accommodation measures, which may include mandatory testing, and communicating it to their employees. Managers were also responsible for documenting the process and the rationale for their decisions.

The Human Resources Branch was responsible for supporting the Deputy Minister with the overall implementation of the Vaccination Policy within ECCC and the Directive on Duty to Accommodate, including ensuring that employees and managers were informed of their rights, responsibilities and obligations. The Labour Relations team within the Human Resources Branch provided advice and assistance to managers as they carried out their roles and responsibilities to administer the requests in a timely manner.

Human Resources Expert Review Committee was established when the Vaccination Policy came in effect. Its mandate was to review all accommodation requests and supporting documentation received in relation with the Vaccination Policy and to make recommendations to delegated managers to support their decision making.

2. Objective, scope and methodology

Objective

The audit objective was to assess the application of the management control framework developed to support the implementation of the Treasury Board Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police. The audit focused on the governance and application of procedures that were put in place to administer the accommodation requests received by not fully vaccinated employees based on a certified medical contraindication, religion or another prohibited ground for discrimination as defined under the Canadian Human Rights Act.

Scope

The audit focused on:

• the effectiveness of the governance and monitoring practices established and the controls put in place to administer the accommodation requests received in the application of the Vaccination Policy
• a review of all cases of employees requesting an accommodation in relation with the Vaccination Policy

The lines of enquiry and criteria are in Appendix A.

The audit covered the period from October 6, 2021, the date the policy came into effect, to March 31, 2022, the end of fiscal year. The audit team examined 99 (100%) requests for accommodation received from 92 individual employees during the period under scope. Seven of the 99 requests were submitted by employees who had a first accommodation request denied and subsequently applied for accommodation under another category. For the purposes of the audit, all accommodation requests associated with an employee represent 1 case. As such, we consider that 92 cases were managed during the period under review.

This is the second of 2 internal audits conducted on the implementation of the Vaccination Policy. The previous audit focused on the governance and application of procedures established to administer the consequences of non-compliance provisions (section 7 of the policy). A denial of an accommodation request could result in non-compliance, therefore leading to leave without pay as a consequence.

The audit scope did not include the following elements:

• validation of the recommendations provided by the Human Resources Expert Review Committee to managers
• validation of the authenticity of key documentation provided by employees in support of their duty to accommodate requests
• complaints received or disputes related to decisions and processes pertaining to duty to accommodate requests
• the application of the Vaccination Policy for employees who were already on leave when the policy came into effect and remained on leave on March 31, 2022
• any case where the attestation deadline was different from October 29, 2021, as specified in Appendix A of the Vaccination Policy, unless that date was within the scope period
• the application of the measures to be taken following the suspension of the Policy on COVID-19 vaccination with regard to employees with accommodation measures or pending requests

Methodology

The methodology included:

• a review of relevant documentation, including policies, guidelines, procedures and communication materials
• interviews and walkthroughs with key personnel from the Human Resources Branch
• a review of 99 duty to accommodate requests made by 92 unvaccinated employees requesting an accommodation based on medical, religion or another prohibited ground for discrimination as defined under the Canadian Human Rights Act.

Statement of conformance

The audit conforms to the International Standards for the Professional Practice of Internal Auditing, as supported by the results of the quality assurance and improvement program.

3. Findings and conclusions

3.1 Governance to support Vaccination Policy implementation and the Directive on the Duty to Accommodate for employees unable to be fully vaccinated

What we examined

The audit sought to determine whether a governance framework was in place and effective to support the administration of the accommodation requests for employees not fully vaccinated in the context of the Vaccination Policy and in line with the TBS Directive of the Duty to Accommodate.

Through interviews with key personnel from the Human Resources Branch, a review of documents including guidance and directives and a review of all cases requesting an accommodation in relation with the Vaccination Policy, the audit team assessed whether:

• oversight functions were adequately established to support the administration of the duty to accommodate requests
• roles, responsibilities and authorities related to the management of the duty to accommodate requests were clearly defined, documented, communicated and understood
• processes related to the management of the duty to accommodate requests were clearly defined, documented, communicated, understood and applied

What we found

The governance structure adequately supported Vaccination Policy implementation with respect to duty to accommodate requests received. To support delegated managers in discharging their roles with respect to duty to accommodate, the Department established the Human Resources Expert Review Committee (HRERC) when the Vaccination Policy came in effect. This was done in consultation with other departments and in keeping with guidance received from the Treasury Board of Canada Secretariat Office of the Chief Human Resources Officer (OCHRO). The committee’s mandate was to review all the accommodation requests received in the context of the policy and to provide recommendations to the employees’ manager as to whether the accommodation applied or not. It is important to note that the committee did not have decisional authorities, since the Vaccination Policy clearly states that managers were ultimately responsible for making the decision. Notwithstanding, this committee was established as an appropriate mechanism to support the management of the Vaccination Policy related duty to accommodate requests in a consistent, objective and uniform manner across the department.

The HRERC was composed of the Chief Human Resources Management Officer and her senior advisor, the Director General, Workforce Development and Wellness Service, the Director, Wellness Programs and the Departmental Lead for the Vaccination File (Labour Relations Manager). A lawyer from the Centre of Expertise for Labour and Employment Law at Justice attended all the committee meetings to provide legal advice. The committee also informed the Deputy Ministers and the Senior Legal Counsel of the advice provided to managers.

While no formal documented Terms of Reference were available, the responsibilities and operation of the committee were outlined in procedures that the Human Resources Branch developed to guide the management of accommodation requests received in relation to the Vaccination policy. Those guidelines are as follows.

• For each accommodation request, the committee ensured that proper documentation was provided in order to proceed with the analysis and the development of a recommendation. The audit team was informed that the committee sought guidance from OCHRO and the Centre of Expertise for Labour and Employment Law at Justice as required to determine what constituted sufficient and appropriate documentation for the different types of requests. Employees seeking accommodations due to medical constraints were required to provide a medical note or a medical statement. Employees seeking accommodations based on their religion needed to provide a sworn affidavit. Finally, those seeking accommodation based on another prohibited ground for discrimination as defined under the Canadian Human Rights Act needed to provide an attestation of the details regarding one or more of the prohibited grounds of discrimination that rendered the employee unable to be fully vaccinated. Upon receipt of the supporting documentation, the committee analyzed the request and providing a recommendation to the appropriate manager as to whether the accommodation should be accepted or denied.
• A list of clearly established criteria for the different types of accommodation requests was developed based on the TBS Framework for implementation of the Policy on COVID-19 Vaccination, to support the committee’s analysis of each case in a consistent, objective and uniform manner (see Appendix B for the list of criteria used in conducting the analysis).
• Committee meetings were called on an ad hoc basis when files were ready for review. The purpose of the meetings was strictly to review the documentation submitted, to perform an analysis and to provide a recommendation to the managers. The committee met as frequently as twice per day in the early stages of the implementation of the Vaccination Policy.
• Following each meeting, the committee prepared summary sheets for each case discussed, indicating the date of the review and outlining HRERC’s analysis and its recommendation. These served as formal meeting minutes.

From walkthroughs with Human Resources Branch personnel and a review of all requests for accommodation received in the context of the policy, the audit team noted several good practices:

• All committee members attended each meeting and made themselves available to discuss cases and provide a recommendation to the appropriate managers in a timely manner.
• The committee was flexible in giving employees requesting accommodations the opportunity to provide additional information and documentation through their manager before concluding their analysis and providing their recommendation. In some cases, the committee met 3 times to discuss the same file before providing a recommendation.
• All accommodation requests were supported by a legal consultation and received legal advice. This was one of the benefits of having an expert from the Centre of Expertise for Labour and Employment Law from the Department of Justice attend the HRERC meetings.

Finally, the governance structure was complemented by the following individuals or teams to ensure that the Vaccination Policy related to duty to accommodate requests was managed in compliance with the policy and that decisions were made and communicated in a timely manner:

• Managers were ultimately responsible for rendering employee accommodation request decisions. The Vaccination Policy does not provide specific definitions for managers. In keeping with ECCC internal procedures, in the context of duty to accommodate, a manager was defined as either the employee’s direct supervisor (at any level, including below Director level) or the direct supervisor’s Section 34 Delegated Manager (Director level and higher) or at the Director General level and higher, depending on the outcome of the decision as follows:
  • Employee’s direct supervisor (at any level, including below Director) – responsible for rendering the duty to accommodate decision and informing their employee if the HRERC’s recommendation was to accept the accommodation request. If the direct supervisor disagreed with the recommendation to accept the request, the decision was escalated to the direct supervisor’s Section 34 Delegated Manager (EX-01 level or higher).
  • Direct supervisor below Director level could not make the final decision themselves if the HRERC’s recommendation was to deny the duty to accommodate request. In this case, the responsibility was incumbent upon Section 34 Delegated Manager (Director level and higher) as specified below.
  • Section 34 Delegated Managers (Director level and higher) were responsible for making final decisions and informing employee when HRERC’s recommendation was to deny an accommodation request. In the event that the HRERC’s recommendation was not followed, the Section 34 Delegated Manager was also responsible for providing a written rationale to the Human Resources Branch as to why the decision did not align with the HRERC’s recommendation and briefing their branch head.
  • Director General Level and higher - Any action requiring to place an employee on leave without pay as a result of the denial of the duty to accommodate request required approval by the Section 34 Delegated Manager at the Director General Level and higher. This is in line with the HR delegation instrument.
• The Chief Human Resource Management Officer was the departmental lead in supporting the Deputy Minister in implementing the policy at ECCC. The Human Resources Branch is the central point and primary lead responsible for implementation within the Department.
• HR Labour Relations staff supported managers in the administration of the duty to accommodate cases by informing and providing advice to them for gathering supplementary information or missing documents or by providing questions to be answered by the employees.
• The Departmental Lead for the Vaccination File (Labour Relations Manager), which is a member of the HRERC was instrumental in identifying employees requesting an accommodation in GC-VATS and communicating with managers on behalf of the HRERC for monitoring purposes and to obtain supplementary information or key documents to support accommodation requests. This allowed the committee to finalize its analysis of pending files and provide an objective recommendation based on all information available for each case and report on status of each case.
• The Vaccination and Rapid Testing Implementation Working Group was established by the Human Resources Branch. It was co-chaired by the Director General, Workforce Development and Wellness Service and the Director, Labour Relations, Health and Safety and Disability Management. Members included representatives from each branch at the manager or director level. The purpose of the working group was to share information and quickly identify and address any issues related to Vaccination Policy implementation. The working group met weekly during the period under review. Meetings were used effectively to update branches on policy implementation and address concerns related to processes in place to support accommodation requests and potential administrative leave without pay cases.

Roles and responsibilities

The audit found that the roles and responsibilities regarding the implementation of the Vaccination Policy with respect to the duty to accommodate were well documented and clear. The Vaccination Policy, published on TBS’s website, defines the roles and responsibilities of the deputy heads, managers and employees with respect to the duty to accommodate, in alignment with the Directive on the Duty to Accommodate, for persons unable to be fully vaccinated, as outlined earlier in this report. TBS also published a Framework for implementation of the Policy on COVID-19 Vaccination, which supports the implementation of the Vaccination Policy by providing additional guidance with respect to the duty to accommodate in the context of the Vaccination Policy.

The TBS Managers’ Toolkit for the implementation of the Policy on COVID-19 Vaccination, which was shared with ECCC managers, provides further guidance on discharging roles and responsibilities regarding the duty to accommodate. Finally, ECCC internal procedures developed for reviewing duty to accommodate requests in the context of the Vaccination Policy define the roles and responsibilities of the Human Resources Expert Review Committee members and managers, as described in the previous section of the report.

Furthermore, our file review revealed that Labour Relations staff and the Departmental Lead for the Vaccination File (Labour Relations Manager) played an active role in supporting managers with employee duty to accommodate requests. This included preparing questions for employees to answer and to gather supplementary information to support their requests, assistance with grievances particularly in cases were the duty to accommodate request was denied, drafting letters to inform employees of the decision and providing guidance to managers when required. In conclusion, based on our file review and interviews, roles and responsibilities were well understood and applied.

Processes in place to administer duty to accommodate requests

Overall, the processes in place to administer the Vaccination Policy with respect to the duty to accommodate requests were adequately developed and communicated.

The Vaccination Policy outlines the requirements related to the administration of the duty to accommodate requests. The TBS Framework for the implementation of the Policy on COVID-19 Vaccination was developed and published to support the implementation of the policy with more specific guidance. The Framework outlines the 5 steps to follow in the decision-making process to determine if the duty to accommodate applies:

• Step 1 – Requesting accommodation when unable to be fully vaccinated (the employee’s responsibility)
• Step 2 – Gathering relevant information (responsibility of both the employee and the delegated manager, in that the manager requests the relevant documentation to support the accommodation request, and employee gathers and provides the requested documentation to manager)
• Step 3 – Making an informed decision (responsibility of the manager, in consultation to internal subject matter experts or guidance related to the accommodation measures)
• Step 4 – Implementation (responsibility of the manager, either by providing the accommodation or if the accommodation does not apply, by implementing the requirements of the Vaccination Policy with respect to attesting the vaccination status and application of administration leave without pay if the case)
• Step 5 – Recordkeeping (responsibility of the manager, by documenting the process, supporting materials provided, the decision and any follow-up actions).

In addition, OCHRO developed a Managers’ Toolkit that provided guidance to support the implementation of the Vaccination Policy. With the suspension of the Vaccination Policy in June 2022, a new Managers’ Toolkit for the Suspension of the Policy on COVID-19 Vaccination had been developed and distributed to all departments, to assist managers in handling cases of employees who were placed on Leave Without Pay, employees who had accommodation measures or for those employees whose request were still pending a decision.

The ECCC Human Resources Branch developed its own internal procedures, which were communicated to branch heads shortly after the Vaccination Policy came into effect. The procedures aligned with the TBS Framework and integrate the role of the HRERC as the internal subject-matter experts to support managers in the decision-making process, as described above.

Finally, the ECCC Human Resources Branch officials developed template letters to help delegated managers communicate with their employees and inform them of their decision and the reason why the duty to accommodate request was denied. In addition, when the Vaccination Policy was suspended, the Human Resources Branch developed and distributed to all ECCC managers a new template letter to help them communicate to employees that accommodation measures, the assessment of pending requests and rapid testing requirements (where applicable) had come to an end.

3.2 Application of the duty to accommodate requests made by employees not fully vaccinated

What we examined

The audit assessed whether internal controls were in place and monitored to support the duty to accommodate requests made by employees not fully vaccinated. The audit team conducted interviews with key personnel from the Human Resources Branch, a file review of the 92 cases (99 requests in total) of employees who were not fully vaccinated and were seeking an accommodation and a review of reports provided to senior management. We assessed whether:

• documentation supporting duty to accommodate requests received in the context of the Vaccination Policy and recommended for approval were appropriate and sufficient to support decision making
• employees not fully vaccinated who requested an accommodation were informed of the decision by their manager in a timely manner
• temporary measures were put in place for employees requesting a duty to accommodate while their file was pending a decision
• duty to accommodate requests and related decisions were monitored and reports were provided to senior management in a consistent and ongoing manner to support the implementation of the Vaccination Policy and the Directive on the Duty to Accommodate

What we found

Documentation supporting the duty to accommodate requests

Employees had to attest to their vaccination status in the Government of Canada Vaccine Attestation Tracking System (GC-VATS). In the system, unvaccinated employees who sought an accommodation were to select the option “Unvaccinated because you are seeking accommodation”. Employees who did not have access to GC-VATS needed to contact their immediate supervisor and provide a printed form of their request with the necessary documentation to support the request.

The Human Resources Branch monitored attestations and produced GC-VATS reports that tracked all new requests for accommodation, which also included requests received in a printed form that were entered in the system by managers. The Departmental Lead for the Vaccination File (Labour Relations Manager) was responsible for collecting the documentation to support the accommodation requests by communicating with the managers who in turn obtained the documentation from their employees. The departmental lead for the vaccination file also coordinated any additional requests for information on behalf of the HRERC and communicated HRERC’s recommendation to managers.

Upon review of the 99 requests for accommodation received from 92 individuals in the context of the Vaccination Policy, the audit found that in the majority of the cases, the documentation on file supporting the requests was appropriate for the purposes of the review by the HRERC. The audit confirmed that the accommodation requests recommended for approval by the HRERC included all of the necessary documentation and met all the established criteria used in the decision-making process, as outlined in Appendix B.

The fact that supporting documentation accompanied requests does not mean that the HRERC would automatically recommend them for approval. Each request was required to meet the specific criteria established for the category of accommodation requested, as described in Appendix B of this report. As such, some cases with the required documentation on file were recommended for denial because they did not demonstrate they met all the required criteria. Furthermore, some files did not include sufficient information to allow for informed decision making. The audit noted that as expected, all these effectively resulted in HRERC recommending that the accommodation request be denied.

Table 1 provides a snapshot of the review results including types of requests, number of requests received HRERC’s recommendation and the outcome.

Table 1: Snapshot of review results as of March 31, 2022

Categories of duty to accommodate requests	Number of requests received	Employees provided appropriate and sufficient1 documentation to support their requests		Total number of requests reviewed by the HRERC		Outcome of the requests
		Yes	No	Reviewed	Removed2	Approved	Denied	Removed3
Medical Constraints	37	24 (65%)	13 (35%)	27 (73%)	10 (27%)	14 (38%)	9 (24%)	14 (38%)
Religious Based	49	41 (84%)	8 (16%)	45 (92%)	4 (8%)	6 (12%)	36 (74%)	7 (14%)
Other prohibited grounds for discrimination	13	1 (8%)	12 (92%)	11 (85%)	2 (15%)	1 (8%)	10 (77%)	2 (15%)
Total	99	66	33	83	16	21	55	23

Requests based on medical constraints - 24 of 37 requests were supported by appropriate documentation such as a medical note or medical statement or certificate by a recognized practitioner. For the remaining 13 requests, employees were either unable to obtain a medical note, provided a note not issued by a licensed medical physician or nurse practitioner were claiming they were in the process of receiving such document but never provided it, or did not provide any supporting document. The file review indicated that for all requests based on medical constraints for which the employee did not provide the required supporting documents, the HRERC recommended to the respective managers that the accommodation request be denied. Some of the cases were removed before HRERC’s review. As such, 14 (38%) duty to accommodate requests were approved.

Requests based on religion - 41 of 49 requests were supported by appropriate documentation such as a sworn affidavit or statement of oath in lieu of the affidavit or a sworn letter and a letter from a Church signed by a pastor or a bishop or a letter from a religious group. The HRERC requested additional information in 25 (51%) requests in order to make an informed recommendation. The outcome resulted in the approval of only 6 (12%) requests. Although most requests were supported by appropriate documentation, the information provided was not sufficient to meet all 3 criteria described in Appendix B.

Requests based on other prohibited grounds of discrimination as defined under the Canadian Human Rights Act. Only 1 of the 13 requests submitted had the necessary documentation to support the request and was recommended for approval.

The file review confirmed that the Centre of Expertise for Labour and Employment Law at Justice was consulted and provided legal advice on all cases analysed by the HRERC.

Timeliness of informing employees of the decision regarding their accommodation requests

The Vaccination Policy and the supporting Framework for Implementation state that employees should make a request for accommodation and provide supporting documentation to their manager at the earliest opportunity or by the attestation deadline. Similarly, the framework states that a manager should decide on a response to the accommodation request at the earliest opportunity and must promptly advise the employee of the decision, the rationale for the decision, the accommodation to be provided, if applicable, and the steps that must be taken to implement it.

Given the uniqueness of each case and the time dependencies associated with the various stakeholders involved in the duty to accommodate process, it was difficult to provide an assessment of the overall timeliness from the moment at which a request was submitted to the moment when an employee was informed of the decision. The time needed to reach and communicate a decision factored in the time for employees to submit the request and supporting information, for the HRERC to review the information and deliberate, for the Human Resources Branch to inform the manager of the HRERC’s recommendation, for the manager and/or the delegated manager to make a decision and inform the employee of the outcome. As such, the audit sought to explore the areas that were under the purview of the Human Resources Branch, such as the time that the HRERC took to review the information and deliberate, and the time taken to provide the appropriate manager and/or delegated manager with a recommendation.

The audit found that the information gathering to support an accommodation decision in most cases took between 20 and 30 business days from the initial date of an employee request. This includes the time to provide additional information as required, and the time the HRERC met to review and analyse the file containing all requested supporting documentation.

Once the HRERC met to discuss a request, the audit noted that the analysis and recommendation provided by the committee was relatively quick, ranging from 1 to 6 days. As such, from initial employee request to HRERC recommendation took between 21 and 36 business days, on average.

Opportunity to enhance information management for duty to accommodate files

The audit noted that while all the files included supporting documentation for the HRERC’s review purposes, only 32 (39%) of the 83 files (the remaining files having been removed) included the communication documents, emails and letters to employees to inform them of the decisions. Because the final decision was the responsibility of the immediate supervisor or the delegated manager (Section 34), letters or emails informing employees of the decision to approve or to deny the accommodation requests were not automatically maintained in file.

In addition, for 11 requests that the HRERC recommended they be denied, the delegated managers’ final decision was to approve the requests. The audit team found documented rationales to support the delegated manager’s decision or indicating that the assistant deputy minister had been briefed for 8 of the 11 requests.

It is recommended information management practice to maintain a complete record of each decision, including the communications between the employee and management, in one central repository, particularly in the eventuality that a decision could be challenged.

Temporary measures in place

In keeping with the Vaccination Policy and the supporting the Framework for Implementation of the Policy on Vaccination, employees unable to be fully vaccinated (partially vaccinated employees or unvaccinated employees with a pending or approved duty to accommodate request) were to receive temporary accommodation measures, which prioritized performing regular duties or responsibilities through full time telework agreements, where operationally feasible. For those employees required to be present in the workplace to perform their duties (including office, laboratory and field) or those who needed to access a worksite on an occasional basis (for example, for in-person work gatherings or, equipment and supplies pick-up), additional accommodation measures applied, such as regular mandatory testing, wearing masks, washing hands and physical distancing with others. The Federal Worksite Testing program was established to outline the approach for the mandatory testing of federal employees. Employees who required rapid testing were not permitted to be in the workplace without registering in the program. Employees were responsible for registering and reporting their test result in the Rapid Testing Application Tool, a software developed and managed by Health Canada.

The audit found these accommodation measures were appropriately communicated across the Department via the ECCC intranet and were in compliance with the requirements of the Vaccination Policy. Unvaccinated employees with a pending decision as to their accommodation request and who did not require access to an ECCC site were permitted to telework until their manager rendered a final decision. For those who required access to ECCC worksites on a regular basis, regular rapid testing (no less than 3 times a week) was mandatory. Similarly, employees with an approved or pending duty to accommodate request who were partially vaccinated and who needed to access an ECCC worksite on an occasional basis also had to use rapid tests before accessing the worksite.

Managers were responsible for requesting testing kits from ECCC’s Occupational Health and Safety Division. They then distributed them directly to employees. Managers were also responsible for monitoring the entries made by their employees into the Rapid Testing Attestation Solution for compliance purposes.

The file review confirmed that the employees received communications regarding the mandatory registration in the Federal Worksite Testing program and details regarding the delivery of testing kits. The audit identified 10 instances where employees were required to register and undergo mandatory testing and report their results in the system. According to the Occupational Health and Safety team interviewed, the 10 employees registered in the Federal Worksite Testing program and were undergoing mandatory testing as requested. Managers reported no instances of non-compliance.

Monitoring and reporting

The audit found that duty to accommodate requests and decisions were monitored and senior management received reports in a consistent and ongoing manner to support the implementation of the Vaccination Policy and the Directive on the Duty to Accommodate.

The Human Resources Branch developed and maintained a tracker for all duty to accommodate requests, which included up-to-date information on the status of each case by category (medical, religious and other grounds). The HRERC updated the tracker as the cases were being reviewed, to ensure that recommendations were provided and followed up upon. For each case, the tracker identified if the accommodation request was recommended for approval or denial by the HRERC, if it was approved or denied by the manager or if it was pending (review, analysis ongoing, awaiting consultation with the Centre for Labour and Employment Law or pending additional information). The tracker also provided supplementary information on each case when needed and was adapted in time for management purposes. The Human Resources Branch collected information on the managers’ decisions via the GC-VATS system or through communications with managers.

The tracker was used for monitoring purposes. It allowed the Human Resources Branch to follow up with managers so that they could proceed with implementing the accommodation measures or pursue the implementation of administration measures in case of non-compliance with the Vaccination Policy. It was also used to report the status of the requests to the Deputy Ministers, in addition to briefing them on cases where the managers’ decisions did not follow the HRERC’s recommendation. The audit found that this reporting tool provided adequate information to senior management to support the review of policy compliance.

4. Conclusion

Governance was established and operated as intended to support the administration of the Vaccination Policy with respect to duty to accommodate requests. The role of the HRERC in reviewing all requests for accommodation was found to be an effective mechanism for enabling the management of the Vaccination Policy related duty to accommodate requests in a consistent, objective and uniform manner across the Department. In addition, having a lawyer from the Centre of Expertise for Labour and Employment Law at Justice attending each committee meeting to provide legal advice on all the requests likely contributed to increasing the confidence level in the recommendation provided.

The processes in place for the application of the duty to accommodate requirements were aligned with policy requirements. The templates developed by the Human Resources Branch supported managers in fulfilling their responsibilities.

Documentation supporting duty to accommodate requests received as a result of the Vaccination Policy was appropriate and sufficient to support decision making. In cases where documentation was not appropriate and sufficient, the HRERC recommended that the requests be denied. The HRERC’s review and analysis was conducted within a reasonable period of time and managers were informed of the HRERC’s recommendation in a timely manner. Temporary measures were in place for employees requesting a duty to accommodate while a decision on their request was pending. Duty to accommodate requests and decisions were monitored and senior management was informed in a consistent, ongoing manner to support the implementation of the Vaccination Policy and the Directive on the Duty to Accommodate.

The report does not put forward recommendations for action. Rather, it presents an opportunity for consideration related to good information management practices. Specifically, consideration should be given in future similar initiatives to identify relevant documentation to be retained (such as milestone communications, rationales and decision letters to employees) and storing all documentation related to an accommodation request in an accessible central location. This would mean that there is a complete file for each request maintained as an audit trail.

Appendix A: Lines of enquiry and criteria

The following criteria were developed to ensure an appropriate level of assurance in meeting the audit objectives.

Line of enquiry 1: Governance structures are in place to support the implementation of the Vaccination Policy and the Directive on the Duty to Accommodate for employees unable to be fully vaccinated.

Line of enquiry 2: Controls are in place to support the implementation of the Vaccination Policy and the Directive on the Duty to Accommodate for employees unable to be fully vaccinated.

Appendix B: Duty to accommodate review criteria

The following provides the criteria and type of supporting documentation used by the ECCC Human Resources Expert Review Committee to analyse the duty to accommodate requests received from unvaccinated or partially vaccinated employees and to provide a recommendation to the delegated managers based on medical contraindication, religion or another prohibited ground of discrimination as defined under the Canadian Human Rights Act.

Medical exemption criteria

• Medical contraindications preventing or delaying full vaccination against COVID-19 based on recommendation of the National Advisory Committee on Immunization such as: a history of anaphylaxis after previous administration of an mRNA COVID-19 vaccine; a confirmed allergy to ingredients found in the different vaccines approved by Health Canada; a history of myocarditis/pericarditis following the first dose of an mRNA vaccine; or an immunocompromising condition or medication, waiting to vaccinate when immune response can be maximized.
• Other medical reason precluding full vaccination against COVID-19.
• Medical note signed by the employee’s treating medical physician (e.g. family doctor, allergist, immunologist) or nurse practitioner.
• Reason provided by medical note confirming it is permanent condition or a time limited condition, in which case duration should be indicated on the note.
• Genuine religious belief is defined as a particular and comprehensive system of faith and worship and the belief in a divine, superhuman or controlling power (does not include secular and socially based beliefs, convictions or practices)
• The belief prevents from full vaccination
  • Vaccination is in conflict with the employee’s religious belief, and their expected line of conduct including customs, obligations, or practices that engender a personal connection with the divine.
  • Vaccination impacts the employee’s relationship with their God in a significant or serious way.
• Sincerity of the religious belief by the employee
  • A completed affidavit, signed before a commissioner for taking affidavits is provided with the employees request
  • Representations made by the employee are truthful and genuine
  • Other evidence such as public statements from religious leaders, scientific evidence on vaccine ingredients supporting or not the truthfulness of the statements
  • Consistency of the belief with the employee’s other current religious practices
  • Consistency of the belief with the employee’s other personal choices including other vaccines, use of medical drugs, etc.

Religious exemption criteria

Other prohibited ground of discrimination as defined under the Canadian Human Rights Act

• Reference to one or more of the prohibited grounds under the Canadian Human Rights Act (for example, race, national or ethnic origin, colour, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered)
• Employee demonstrated a prima facie case of discrimination
• Employee demonstrated how the other prohibited ground prevent full vaccination