Case In Point
Arbitrator Concludes Grievor’s Sincere Religious Beliefs Did Not Prevent Her From Complying with Employer’s COVID-19 Policy
Date: September 11, 2024
In Oxford County v. Canadian Union of Public Employees, Local 1146, Arbitrator Brian Sheehan determined that the grievor, who refused, on the basis of her religion, to undergo rapid antigen testing in accordance with the employer’s COVID-19 policy, had not established that she had been improperly discriminated against on the basis of creed. This is a helpful arbitration decision as it highlights that a union will be required to demonstrate a nexus between a grievor’s religion or creed and their objection to compliance with a COVID-19 policy in order to establish a case of discrimination.
Background
The grievor was employed as a caseworker with the employer. In September 2021, like many other organizations, the employer introduced a COVID-19 policy that required employees provide either proof of vaccination against COVID-19 or submit to regular rapid antigen testing (Policy).
On being advised of this obligation, the grievor provided the employer with two separate ‘information packages’ which, among other things, requested the employer provide proof or evidence as to the efficacy and safety of the COVID-19 vaccines. She advised the employer that she had not been provided with sufficient information to comply with the Policy. She also provided two separate religious accommodation requests and provided a declaration and affidavit in support of her position that compliance with the Policy was contrary to her faith and conscience.
The grievor’s request for an exemption was denied. She ultimately refused to be vaccinated and refused to undergo the antigen testing required by the Policy. After a leave of absence and progressive discipline, her employment was terminated.
The Arbitration Decision
The parties agreed to deal with the claim of discrimination on the basis of creed as a threshold issue.
The union took the position that the employer had discriminated against the grievor by failing to grant her an exemption from the Policy in accordance with the Ontario Human Rights Code (Code) on the basis of her creed. In the alternative, the union argued the Policy was unreasonable insofar as it imposed a penalty of termination for non-compliance. The parties bifurcated the hearing and the matter proceeded on the first question only.
The union contended that the grievor’s refusal to partake in rapid antigen testing was based on her sincere religious beliefs as a Born-Again Christian that the testing violated her body which was created by God and that the employer mishandled her exemption request by refusing it.
The employer argued the union failed to establish a prime facie case of discrimination and failed to demonstrate that the grievor’s refusal to partake in rapid antigen testing was rooted in the protected ground of creed. The employer contended that the grievor failed to demonstrate a nexus between her beliefs and the claim that the Policy should not be enforced. Rather, based on the evidence, the grievor’s refusal was ultimately related to a personal choice about the efficacy of the vaccine and testing.
Arbitrator Sheehan accepted that the grievor’s religious beliefs were sincere, however ultimately concluded that the union failed to establish that the requirement mandating that she undergo rapid antigen testing gave rise to a violation of her rights pursuant to the Code. In other words, the Arbitrator determined that the grievor and the union failed to demonstrate the nexus between her sincere beliefs and her refusal to comply with the Policy.
Notably, in applying the test used by the Human Rights Tribunal of Ontario to establish creed-based discrimination, the arbitrator placed significance on the fact that the grievor had indicated that she was willing to be tested if the employer could satisfy her safety concerns with respect to the testing.
On this point, Arbitrator Sheehan stated:
“Arguably of more significance— not only was the Grievor’s claim of discrimination on the basis of her religious beliefs not front and centre in terms of her critique of the Policy, she, in fact, went a step further and indicated that she was not refusing to take part in being vaccinated/tested, and that if the Employer would satisfy her secular and safety concerns, she would be willing to be tested. Given that her religious beliefs were integral to her sense of being, if she honestly thought that vaccination and testing were fundamentally contrary to her religious beliefs, any possibility that she was willing to potentially take part in such vaccination/testing would have been a non-starter, and she would have loudly and consistently proclaimed such without qualification or hesitation.”
The arbitrator remitted the matter back to the parties.
Key Takeaways
Arbitrator Sheehan’s analysis regarding the test for establishing a prima facie case of discrimination ought to be noted as he afforded significant deference to the grievor’s sincerity of belief but was critical of whether she was able to establish a nexus between that belief and the policy in issue.
This case serves as an important reminder that employers should ensure that decisions regarding creed-based exemptions are made on a case-by-case basis and that sufficient information is gathered and reviewed, in detail, with an eye to assessing not only the sincerity of the employee’s belief but also in assessing whether the employee has established a link between that belief and the policy, rule or directive at issue.
The employer in this case was represented by Hicks Morley’s Glenn Christie.
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