Written on behalf of Peter McSherry
Anyone who has tuned in to Canadian politics over the last year is familiar with the debates around COVID-19 vaccination policies. Throughout the pandemic, citizens have been asked to take various safety measures to help prevent the spread of COVID-19, including wearing masks and being vaccinated to travel, attend school or work, or obtain entry to stores and events.
For various reasons, some individuals have opposed pandemic-related public health measures, including vaccination against COVID-19. For some, the opposition to vaccines is rooted in religious beliefs and practices. In Public Health Sudbury & Districts v. Ontario Nurses’ Association, a recent arbitration decision, an employer’s decision to terminate an employee who did not get vaccinated due to religious reasons was struck down for discrimination.
The parties’ agreed statement of facts indicates that the employee was employed with Public Health Sudbury. In August 2021, the employer developed a policy concerning COVID-19 vaccinations for their employees. The Policy required employees to provide proof of vaccination status, or proof of a medical exemption, no later than August 27, 2021. The Policy mentioned that it would be applied in accordance with the province’s Human Rights Code (the “Code”). It also stated that it would be subject to amendments as the nature of the pandemic changed.
On September 17, 2021, the employee submitted a form stating that she declined to receive the vaccine and provided an affidavit stating:
Pursuant to grounds protected under the Ontario Human Rights Code, I hold a valid exemption to COVID-19 vaccination.
In accordance with the Ontario Human Rights Code, every person has the right to equal treatment, without discrimination because of age, race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, marital status, family status or disability.
Exemption rationale has been verified and validated today.
Towards the end of September, the employer made plans to enforce the policy and sent notices to employees who had submitted a declination form. The notice stated that by the following Friday, employees not in compliance would be placed on leave without pay, with termination as a possible future consequence.
The employer agreed to review the employee’s declaration and agreed that she could work remotely (without being in contact with others) while it did so. Five days later, on October 5, the employer contacted the employee to say that her request was denied “on the basis that an employee’s singular belief against vaccinations does not amount to creed within the meaning of the Code” and placed the employee on leave without pay. This resulted in a grievance being filed by the employee.
Until this point, the employee had not told the employer why she refused to receive the vaccine. When she filed a grievance, a lawyer representing her told the employer she could not receive the vaccine because she is a Roman Catholic and is opposed to the fetal cells used to develop the vaccine.
The employer replied that the vaccines do not contain any issue from a fetus, stating, “current fetal cell lines are thousands of generations removed from the original fetal tissue. They do not contain any tissue from a fetus.”
The arbitrator looked at the employee’s religious background and followed her path towards a more orthodox form of Roman Catholicism over the last couple of decades. She had become a member of the Latin Mass community in Sudbury, which “as matters of doctrine and belief oppose contraception and abortion, and support what they refer to as ‘natural law.’”
The employee admitted that she and her family had received other vaccines in the past, adding that she may not have been aware of what made them up. She stated that she accepts that there is a certain degree of “evil” in the world, adding she only scrutinizes things involving her everyday life when they involve her personally, including putting things into her body.
Through her union, the employee stated that she has a sincerely held belief in a creed stemming from her religion that prohibits her from being vaccinated. As a result, the union took the position that the employee was discriminated against because an exemption for her religion was not granted.
In response, the employer stated that it does not doubt the employee is a devout Catholic but questions whether she sincerely believes that using COVID-19 vaccines interferes with her faith. It argued that other actions the employee took in her professional and personal life have been inconsistent with this belief.
The arbitrator pointed out that when an employee’s reason for refusing to get the COVID-19 vaccine is “sincerely and legitimately based upon one’s creed”, they are entitled to an exemption under the Human Rights Code. He explained that determining whether the reason is “sincerely and legitimately” tied to their creed is a subjective interpretation.
With respect to the connection between fetal cell lines and the COVID-19 vaccine, the arbitrator acknowledged that it might be “factually and objectively quite remote”. However, he held that the employee’s sincere belief that her faith does not allow her to get vaccinated is sufficient grounds for an exemption under the Human Rights Code.
As a result, the arbitrator declared that the employee had been discriminated against and overturned her termination.
Peter A. McSherry Employment Lawyer regularly helps employees who have faced discrimination based on grounds protected by provincial and federal human rights laws. We will advise you on your rights and entitlements under the law and will prime your case for success. Peter A. McSherry also assists unionized employees in understanding their options and rights when filing a grievance.
Conveniently located in Guelph, Peter A. McSherry represents clients throughout the Greater Toronto Area in a broad range of employment-related issues, including wrongful dismissal and severance issues. To schedule a confidential consultation, contact us online or by phone at 519-821-5465.