Landmark Decision – Vaccination Policy – Breach of Human Rights Code

Published in Canadian HR Reporter

A new landmark decision from an Ontario Arbitrator, Public Health Sudbury & Districts v Ontario Nurses’ Association, found that Public Health Sudbury and Districts (“PHSD”) breached the Ontario Human Rights Code (“Code”) when it terminated an employee who refused to comply with the employer’s vaccination policy on the basis of a protected human rights ground, being the employee’s creed.

This decision may be of assistance to employees who were placed on leaves of absences or terminated from their employment due to their refusal to comply with their employer’s vaccination policies, on the basis of their creed (including religion) or other grounds under the Code.

Background

An employee may be exempt from a COVID-19 Vaccination Policy at the workplace if they require accommodation under the Code, for example, on the basis of a medical exemption or on the basis of their creed. This is despite the Ontario College of Physicians and Surgeons, as well as the Ontario Ministry of Health, trying to limit what qualifies as a valid medical exemption.

Moreover, on September 22, 2021, the Ontario Human Rights Commission (“the Commission”) published a statement that a person who chooses not to be vaccinated based on their personal preference does not have the right to accommodation under the Code. The Commission further stated that while the Code prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to one’s creed for the purposes of receiving protection under the Code.

Facts

The Grievor was employed as a Public Health Nurse at PHSD, located in Sudbury, Ontario. The Grievor has been a devout Roman Catholic for approximately 17 years. The Grievor has been a member of Latin Mass, a more traditional and orthodox approach to Roman Catholicism for the past 6 years.

PHSD’s Vaccination Policy took effect on September 1, 2021, which required all employees to comply with the Policy, unless an exemption under the Policy applied. Under the Policy, unvaccinated employees who did not receive an exemption would be subject to a leave of absence, which may be followed by termination of employment.

The Grievor sought an exemption from being vaccinated for religious reasons under the Code and submitted a COVID-19 Vaccination Declination Form on September 17, 2021.

PHSD reviewed the Grievor’s exemption request and denied the request on the basis that an employee’s singular belief against vaccinations did not amount to creed within the meaning of the Code. PHSD placed the Grievor on an unpaid leave of absence. The Grievor was subsequently terminated for refusing to get vaccinated, as required by the Policy.

Decision

The Grievor’s objection to receiving the COVID-19 vaccines centred around the use of fetal cell lines that were descended from cells taken from fetuses aborted in the 1970s and 1980s in developing the vaccine. The Arbitrator acknowledged that the Grievor’s strong disapproval of abortion is an essential and significant part of her religion / creed and it is her belief that taking the vaccine would amount to condonation of abortion, as well as partaking in the sin of those who aborted the fetuses in the first place.

While the Arbitrator noted that the current fetal cell lines that were used to develop the COVID-19 vaccines are thousands of generations removed from the original fetal issue, and therefore, the connection between the use of fetal cell lines and the COVID-19 vaccines is “objectively quite remote,” the Arbitrator held that the central focus in assessing one’s creed is the individual’s sincerity in his or her belief:

“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 Code and the vaccine policy itself. Once the grievor learned about the fetal cell line connection with the vaccines, even if that connection is factually and objectively quite remote, if the grievor sincerely believes that her faith does not allow her to get vaccinated, that would be sufficient grounds for granting her request for an exemption” (para 50).

In addition, the Arbitrator held that the Grievor’s beliefs cannot simply amount to a mere “singular belief,” since Latin Mass community’s doctrine and belief also strongly oppose contraception and abortion.

Takeaway on Breach of Human Rights Code

PHSD erroneously deemed the nurse’s objection, on the basis of her creed, to not meet the requirements under the Code and in doing so, failed to accommodate the employee and breached the Code. Employers need to be very cautious when assessing whether to accommodate an employee’s objection to their vaccination policy and should not let their personal beliefs interfere with whether or not an employee’s objection meets the definition of “creed” under human rights legislation.

This decision stands for the principle that if an employee sincerely believes that their faith does not allow them to be vaccinated, then their request for an exemption to a requirement to vaccinate should be granted.

Although Arbitration decisions do not have a binding effect in a non-unionized employment context, Arbitration decisions can serve as a helpful indicator to both employers and employees on how the Courts and the Human Rights Tribunal of Ontario may interpret creed-based challenges to COVID-19 Vaccination Policies at the workplace.

It is imperative for employers to first consult with experienced Employment Lawyers prior to denying an employee’s request for an exemption or taking disciplinary actions such as placing an employee on a leave of absence and/or terminating employees who requested exemption from the COVID-19 Vaccination Policy based on a human rights-protected ground. Making hasty decisions without receiving legal guidance from an experienced Employment Lawyer may result in an employer facing a lawsuit.

“Ronald S. Minken is the Founder & Managing Principal, Senior Lawyer, and Mediator at Minken Employment Lawyers, an employment law boutique in the Greater Toronto Area. Ron gratefully acknowledges Tanya Sambi, an Employment Lawyer at Minken Employment Lawyers, for her assistance in the preparation of this article. For more information please visit www.MinkenEmploymentLawyers.ca.”

Contact Minken Employment Lawyers today

If you have questions above vaccination policies or human rights exemptions, our employment lawyers at Minken Employment Lawyers are here to help.

Contact Minken Employment Lawyers today to speak to a member of our team: 905-477-7011 | Toll-Free: 1-866-477-7011 | contact@minken.com.

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Please note that this article is for informational purposes only and does not constitute legal advice.