Photo: Supreme Court of Canada
by Justin Diggle, Miller Thomson LLP
Workplace vaccination policies adopted as health and safety measures in response to COVID-19, typically contained exemptions for medical or other grounds protected by human rights legislation. The most common “other ground” was creed or religion. In two recent awards, arbitrators found certain exemption requests were based on practices and beliefs that were protected by creed and religion, but they only had to consider part of the analysis. The parties asked the arbitrators to only determine whether or not the exemption requests were protected, and asked them to retain jurisdiction in the event that the parties were not able to resolve the remaining issues themselves, including the issue of whether the requests could be accommodated without undue hardship. What follows is a summary of the legal principles in this area and the arbitration decisions’ key points for employers.
Supreme Court of Canada precedent
Creed and religion are not identical concepts but religion is a creed. In Syndicat Northcrest c. Amselem, the Supreme Court held that religious freedom does not simply protect an employee’s adherence to objective rules, requirements or dogma of a religion. It also protects an employee’s subjective, sincerely held beliefs that engaging in a practice, connected to a religion, fosters a connection with the divine or the object of their faith.
According to the Court, an individual advancing a freedom of religion claim must show 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. Only then will freedom of religion be triggered.
Public Health Sudbury & Districts v Ontario Nurses’ Association
The employer public health agency’s (“PHSD”) COVID-19 vaccination policy required employees to be fully vaccinated against COVID-19, unless a medical exemption applied or an exemption was otherwise required by the Human Rights Code (the “Code”). If employees did not get vaccinated and an exemption did not apply, they would be placed on an unpaid leave of absence followed by potential termination of employment.
The grievor was a Public Health Nurse who submitted a creed based exemption request, which PHSD considered and denied. The grievor was placed on an unpaid leave and her employment was eventually terminated. The union filed a grievance.
The grievor was a devout Roman Catholic and member of a more traditional and orthodox congregation called Latin Mass. Members of the Latin Mass community opposed abortion as a matter of doctrine and belief, but left the issue of taking a COVID-19 vaccine to members’ personal decisions. The Pope, on the other hand, urged Catholics to be vaccinated as an “act of love” and a “moral obligation.”
The grievor’s exemption request was based on her view that research in the development of COVID-19 vaccines used cell lines from aborted fetuses; thus to receive a vaccine would be to condone, cooperate with, or participate in abortion.
Even though this was the grievor’s belief, the parties agreed that fetal cell lines that were used in the very early stages of research and development of certain COVID-19 vaccines, were grown in a laboratory, did not contain any fetal tissue, were thousands of generations removed from fetuses that were aborted in the 1970s and 1980s, and were not actually used to make the vaccines at issue. The Arbitrator concluded that the connection between the COVID-19 vaccines and the fetal cell lines was remote.
The Arbitrator also noted certain facts that appeared inconsistent with the grievor’s objection: (1) the grievor and her family used medicines for years despite her knowledge that they may have used fetal cell lines in their research and development, and (2) the grievor administered vaccines that utilized fetal cell lines in their research or development.
Despite all of this, the Arbitrator applied Amselem and concluded that the grievor’s objection was related to creed. The Arbitrator found that the Latin Mass community had a doctrine and set of beliefs, and constituted a religion. Furthermore:
Although the Roman Catholic Church leadership urges members to get vaccinated and has concluded that doing so would not be condonation of, cooperation with, or participation in abortion … the issue initially to be determined does not depend upon what religious leaders suggest or whether an individual’s actions are in conformity with the position of religious officials. What is required is a nexus with the religion or creed, a relationship with an overarching system of beliefs of the religion or creed. That is present here, for Latin Mass is opposed to abortion…The fact that the Latin Mass community takes the position that each member must as a matter of their own conscience determine whether getting vaccinated is condoning, cooperating with, or participating in abortion does not render the decision merely a preference or a singular belief, separate and apart from the overarching doctrine of the Latin Mass community. 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.
Moreover, the Arbitrator found 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, cooperation with, or participation in abortion.” The Arbitrator concluded:
Since the grievor holds a sincere belief, with sufficient nexus to her creed, that to get vaccinated would interfere with the exercise of her faith and her relationship with the divine, the grievor is entitled to an exemption based on the provisions of the Code, on the grounds of creed.
Nova Scotia Nurses’ Union v IWK Health Care
The employer hospital’s (“IWK”) COVID-19 vaccination policy required employees to be vaccinated against COVID-19, but also allowed for accommodations for medical or human rights reasons.
The grievor was a Registered Nurse who submitted an exemption request based on religion. IWK considered but denied her request and the grievor was placed on an indefinite unpaid leave of absence. The union filed a grievance.
The grievor was a Christian and an active member of small Protestant congregation. While the grievor provided a number of rationales (some religious, some secular) for refusing to take a COVID-19 vaccination, the “most troubling” for her was an objection based on her view that COVID-19 vaccination requirements are part of an “evil plan” which is the beginning of the way the “Mark of the Beast” is being introduced into society. The Arbitrator summarized this position as follows:
[The Grievor] explained that the Mark of the Beast is talked about in Revelations, Chapter 13. The Beast is Satan and the Bible says people will have to take the Mark of the Beast on their right hand or forehead and people will not be able to buy or sell without the Mark of the Beast on your body. She said if she has to take it to go to work that is very concerning to her as it means she cannot “sell” her services without taking it. This is talked about in the Bible and requires a denouncing of your belief in Christ. This is troubling for the Grievor because she believes that what they are using now for technology and the way it is being implemented is the platform for the way the Mark of the Beast is being introduced. She explained that Mark of the Beast is the ultimate denial of Christ and it goes against everything she believes in to take the Mark of the Beast renouncing all of her beliefs. She clarified that she does not believe the COVID-19 vaccine is specifically the Mark of the Beast, but it may very well be the platform for the Mark of the Beast.
It was suggested that other individuals within the grievor’s church may have had views that were different than hers.
The Arbitrator applied Amselem and concluded that the grievor’s objection was protected by freedom of religion. The Arbitrator found that the grievor was sincere when she said, “that, for her, to accept an injection which may be used as the platform for the Mark of the Beast, which she describes as the ultimate denial of Christ, would go against everything that she believes in as a Christian.” Moreover:
Whether the Grievor’s beliefs about the prophetic implications of the COVID-19 vaccines is reasonable or…are shared by leaders of her church or other members of her faith are simply not questions that have to be asked and answered in the affirmative in order to establish the required nexus to religion. As long as the Grievor’s subjective belief that she must not take a COVID-19 injection arises from understanding of her personal obligations of her Protestant Christian religion, as I find to be the case, and she is sincere in asserting this obligation, the required nexus to religion is established.
Key takeaway for employers
In these two awards, the Arbitrators applied a relatively low threshold for establishing that objections to taking a COVID-19 vaccine were covered by religion and creed protections. However, as noted above, these findings are only the first part of the analysis. Employers are only required to accommodate religious beliefs if doing so does not constitute undue hardship, and a key factor which may create undue hardship is health and safety risk. COVID-19 vaccine requirements are measures to increase workplace health and safety. These two awards did not have to consider how accommodating these religious beliefs could be reconciled with health and safety concerns, and that will likely be the key issue for employers who are faced with these claims in their own workplaces.