Case In Point
Arbitrator Finds Grievor was Prima Facie Discriminated Against when Employer Denied her Requested Exemption to the COVID-19 Vaccine
Date: June 21, 2022
In Public Health Sudbury & Districts v. Ontario Nurses’ Association, Arbitrator Robert Herman accepted that an employee may be entitled to an exemption from an employer’s mandatory COVID-19 vaccination policy on the basis of creed where they held a sincere belief that the relationship between the COVID-19 vaccines and fetal cell lines was contrary to their religious convictions.
The Policy
In August 2021, Public Health Sudbury & Districts (the Employer) developed its COVID-19 Vaccination Policy (Policy). The initial version of the Policy required employees to: provide proof of vaccination; provide proof of a medical exemption; or complete an education program regarding the COVID-19 vaccine. The Policy evolved as the pandemic unfolded, ultimately requiring all employees to be fully vaccinated, subject to legitimate medical or Ontario Human Rights Code (Code)-based exemptions. Staff who failed to comply with the Policy would be subject to a leave of absence followed, potentially, by termination of employment if they did not become fully vaccinated.
The Exemption Request
The Grievor, a public health nurse, submitted a form to the Employer attesting that she had reviewed the COVID-19 vaccination education program and declined to receive, and sought an exemption from, the vaccine. The Grievor outlined the basis of her creed-based exemption to the COVID-19 vaccines, which was that the vaccines used fetal cell lines in their research, and to receive one of the vaccines in these circumstances would be to condone, cooperate with, or participate in abortion.
The Grievor was advised that her exemption request was denied on the basis that a singular belief against vaccinations does not amount to creed within the meaning of the Code. She was placed on an unpaid leave of absence, and subsequently terminated. ONA then filed a grievance.
The Issues
ONA submitted that the issue was whether the Grievor had a bona fide belief in a creed, and whether that belief supported her exemption request.
The Employer responded that it did not dispute that the Grievor was a devout Catholic and was firmly against the practice of abortion, and that being anti-abortion was part of her faith. However, it asserted that the fundamental question was whether the Grievor sincerely believed that receiving any of the COVID-19 vaccines derived from fetal cell lines in fact interfered with the practice of her faith, and/or whether her refusal to take any of the vaccines was part of an overarching set of beliefs that was consistent with her conduct or practices. The Employer argued this conclusion could not be reached, because her actions in virtually every other context were inconsistent with her claim that her faith required her to decline vaccination for the reasons she asserted.
The Employer maintained that the Grievor decided not to get vaccinated for reasons other than her creed, and then latched onto the “faith” rationale once she realized it might enable her to claim an exemption.
The Decision
Arbitrator Herman outlined that the Grievor must demonstrate that she has a practice or belief, that has a nexus with her creed, that calls for a particular line of conduct (here, the decision to not get vaccinated).
The Arbitrator found the Grievor to be credible, noting the Grievor is a member of the Latin Mass community, which takes a more traditional and more orthodox approach in worship and life than the Roman Catholic Church. With respect to receiving a COVID-19 vaccine, Latin Mass neither prohibits members from taking the vaccines nor requires that they do so. Rather, it requires that individual members make their own decision as to whether they will get vaccinated, consistent with the Latin Mass view that using contraception and abortion are against God’s will and the rules of the Church.
Arbitrator Herman accepted that the individual decision about what one’s faith requires of a member to avoid condoning, cooperating with, or participating in abortion remains a decision about how a member interprets and applies their faith, and has a nexus to the individual’s creed. He also accepted that the Grievor was sincere in her belief, and that even if the connection between the COVID-19 vaccines and fetal cell lines was factually and objectively quite remote, so long as the Grievor sincerely believed that her faith does not allow her to get vaccinated for this reason, that would be sufficient grounds for granting her request for an exemption.
The Arbitrator determined that the Grievor sincerely believed that to get one of the COVID-19 vaccines would be to act in a manner inconsistent with her beliefs and what her faith and creed require of her, and would in her mind amount to condonation of abortion.
As the Grievor held a sincere belief, with sufficient nexus to her creed, the Grievor was entitled to an exemption based on the provisions of the Code. It followed that the Grievor was prima facie discriminated against when the Employer applied its Policy to deny her requested exemption.
The matter has been remitted to the parties.
Takeaway
Employers should take note of this decision. While each case will be decided on its own specific facts, Arbitrator Herman’s analysis regarding the inconsistencies in the Grievor’s conduct should be noted, as the Arbitrator granted significant deference to the Grievor in respect of the sincerity of her belief. Employers should ensure that decisions regarding creed-based exemptions are made on a case-by-case basis, and that sufficient information is gathered to assess the sincerity and nature of the employee’s exemption request.
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