Since the covid-19 vaccine became available to the public in Ontario, many businesses have implemented different policies requiring employees to get the vaccine. There are some instances where employees have sought exemptions to these policies. It is important for both employers and employees to know their respective rights and obligations as it pertains to vaccination policies.
When an employee seeks an exemption from a corporate vaccine mandate, it is not sufficient for that reason to be because “they did not want it”. Although, if the employee is seeking their exemption on grounds set out in the Ontario Human Rights Code, there may be a legitimate reason for the exemption.
There are currently seventeen protected characteristics under the Ontario Human Rights Code; these include, but are not limited to: race, ethnic origin, disability and gender. Aside the obvious considerations of accommodations required for health related issues, which is not the focus of this blog post, an important ground as it relates to vaccine mandates is that of creed. Under the broader title of creed is the protection religion.
An exemption based on religion was the central issue in Public Health Sudbury & Districts v Ontario Nurses Association. This case features a employed public health nurse who was seeking an exemption Public Health Sudbury’s vaccine mandate for reasons based on her religion. The nurse wished to stay anonymous and was is referred to as the grievor in the case.
The grievor is a devout follower of Latin Mass. Latin Mass stems from Catholicism, but takes a more traditional approach in worship and life than the Catholic Church. The grievor claimed that being required to receive the vaccine would go against her religious beliefs because the early use of fetal cell lines in covid vaccine research. She stated that the use of these fetal cell lines went against her fundamental religious stance against abortion. Her employer, Public Health Sudbury, did not accept this as valid exemption and in turn, followed up with her subsequent suspension and termination.
The grievor challenged the legality of this decision and the case was brough to arbitration on June 7th, 2022. The grievor argued that her termination was a violation on Human Rights Grounds, specifically, a violation based on Creed.
What exactly is Creed under the Ontario Human Rights Code? Creed includes, but is not limited to, “religious creed” or “religion”, which is relevant to the case at hand. In this situation, her creed is the beliefs that are held under the Latin Mass community. With the context of vaccines it is also important to note that creed does not include personal preferences or singular beliefs.
The test used for a religious freedom analysis begins with the claimant needing to show that this particular infringed practice or belief has a nexus with their religion. The infringement must then be endangering a personal connection with the subsector object of that persons faith. Once this is established, it must also show that this person is sincere in their belief. So in this case, the grievor must demonstrate that she has a practice or belief, in which has nexus with her creed, that calls for her to not get vaccinated.
In the decision at arbitration, it was importantly established that “there can be multiple reasons for objecting to getting vaccinated, but as long as one of the reasons is sincerely and legitimately based upon one’s creed, as subjectively interpreted and applied, an applicant would be entitled to an exception under the Ontario Human Rights Code and the vaccine policy itself” (Public Health Sudbury & Districts v Ontario Nurses Association, 50).
In this particular case, the arbitrator decided that: the grievor holds a sufficient belief, in which has nexus to her views under Latin Mass, where getting vaccinated would interfere with the exercise of her faith. This meant that she is entitled to exemption from the mandatory vaccination policy based on the provisions of the Ontario Human Rights Code.
This is an important decision as it runs contrary to the previously held understanding that creed may be insufficient grounds for an exemption to a vaccination policy. The principles being adopted by the Arbitrator in this case also seem to require employers to take a contextual approach when considering requests for exemptions to a mandatory vaccination policy. There can be certain situations where an employee has a legitimate stance to request an exemption to a vaccine mandate.
With that being said, we anticipate that there will be clarification from the Courts in the near future as further challenges will likely be brought against mandatory vaccination policies. However, If any of these difficult situations arise in the workplace, we recommend retaining an experienced employment lawyer to assist with guidance in the right direction.
the right direction.
Written by Wyatt Shipley & Josh Valler