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Author:
Charles Binns

Date:
2022.07.21

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THE EMPLOYERS' EDGE

Arbitrator Upholds Creed-Based Exemption from COVID-19 Vaccination Requirement

Practice Areas: Human Resources Support

The steady stream of COVID-19 vaccination continues to flow, with an Arbitrator in Ontario recently breaking with convention and finding a creed-based exemption to an otherwise reasonable vaccination policy. The case itself can be found here.

Facts

The employer, Public Health Sudbury & Districts, (“PHSD”), implemented a policy requiring vaccination of its workforce against COVID-19 in September 2021. The policy required all employees to be fully vaccinated unless a legitimate medical exemption applied, or an exemption was otherwise required by the Ontario Human Rights Code (the “Code”). The Grieovr, a Public Health Nurse, refused to receive a COVID-19 vaccination based on her creed - the Latin Mass portion of the Roman Catholic church. In particular, the Grievor objected to the alleged use of fetal cell lines in the development of vaccinations, which she equated with condonation, cooperation or participation in abortion. As a result, she requested accommodation (i.e. exemption) under the policy.

The employer resisted the accommodation request, arguing that the Grievor did not actually sincerely believe that the vaccines were at odds with her religious believes. The Employer pointed to a number of inconsistencies in the Grievor’s testimony (e.g. use of other medications developed using fetal cell lines and a failure to investigate the alleged connection between the two), inconsistencies with the official position of the Roman Catholic church, and inconsistencies in evidence provider by her pastor indicating that vaccination was a personal choice, amongst others, to argue the Grievor’s refusal to be vaccinated was a singular personal belief unrelated to her creed. Rather, the Grievor was using her creed as a matter of convenience and not in an attempt to seek legitimate accommodation.

Decision

Arbitrator Herman began his analysis with the seminal Supreme Court case on the topic, Syndicat Northcrest c. Amselem, which established the following framework for freedom of religion cases, which applies equally to claims under the Code:

Thus, at the first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court that (1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and (2) he or she is sincere in his or her belief.

In particular, Arbitrator Herman noted that the analysis does not just depend on what religious leaders suggest or whether an individual’s actions conform with the position of religious officials. Rather, what is required is a nexus to the religion or creed that is sincerely held by the claimant. Moreover, a religious objection need not be the only reason an individual seeks accommodation, so long as it is a reason for the request. Because of this, and even though Arbitrator Herman specifically noted the inconsistencies in the Grievors’ position with respect to other medications, her own administration of the vaccine, her failure to investigate the fetal cell line and vaccine connection, and the objective remoteness of that connection, the Grievor’s request for accommodation was upheld as sincere and connected to her religion. Despite all of the inconsistencies, Arbitrator Herman was not convinced that the Grievor had simply latched on to a religious reason as a matter of convenience, but truly believed it was against her religion.

Takeaways

The case highlights the evidentiary issues associated with creed-based claims for religious accommodation. It suggests that evidence of a long history of religious participation and sincerity could be enough to overcome numerous and obvious examples of inconsistent practices and beliefs when it comes to the use of fetal cell lines in the development of vaccines and other medications, even where the claimant does not take the time to fully investigate these alleged connections. While courts and tribunals will not assess or evaluate the legitimacy of personally held religious beliefs per se, claimants are required to establish the necessary facts through evidence to substantiate their claims. As a result, future decisions applying the same legal principles may well come to different conclusions based on the facts of the particular case. Moreover, because claimants are not held to the specific, public positions of their religious organizations, it can be very difficult for employers to dispute these claims, and every creed-based request should be considered on a case-by-case basis.

Employers should also remember that any accommodation request comes with an obligation on the claimant to provide enough information necessary to substantiate their claim. Employers should be not be shy about asking for information that is reasonable in the circumstances where a creed-based accommodation request is made, just like any other request for accommodation.

If you have questions about accommodations under COVID or any other workplace policies, the lawyers at CCPartners are here to support you! Click HERE to access CCPartners' “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law or reach out to any of our lawyers for assistance today!

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