The Facts
In Public Health Sudbury & Districts v Ontario Nurses’ Association, Arbitrator Herman upheld an employee’s entitlement to a creed-based exemption under the employer’s mandatory vaccination policy.
Sudbury & District Health Unit, operating as Public Health Sudbury & Districts (“PHSD” or the “Employer”) is a public health agency located in Sudbury, Ontario. In response to the Covid-19 pandemic, PHSD implemented a policy which originally required its employees to provide proof of vaccination; provide proof of a medical exemption or complete an educational program regarding the Covid-19 vaccine. The policy was applied in accordance with the Ontario Human Rights Code (the “Code”). As the pandemic continued to unfold, PHSD updated their vaccination policy to require all employees to be fully vaccinated, unless an exemption applied. Those who did not comply were subject to a leave of absence followed by, potentially, termination of employment.
The Grievor worked as a nurse for PHSD and assisted in communicating with the public about Covid-19 and the Covid-19 vaccinations. Despite her position as a health care practitioner, the Grievor submitted an exemption request on the basis of creed. The Grievor identifies as a Roman Catholic and a member of the Latin Mass community, which takes a more traditional and more orthodox approach in worship and in life than does the more mainstream Roman Catholic Church. While members of the Latin Mass community oppose contraception and abortion, they do not necessarily prohibit receipt of Covid-19 vaccines, nor do they require that they be taken. Instead, members are free to make that choice for themselves, consistent with the view that contraception and abortion are against God’s will. The Grievor opposed the Covid-19 vaccine because of the use of fetal cell lines in its development and believed that receiving the vaccine would be to condone, cooperate with or participate in abortion. PHSD denied her request for exemption claiming that her singular belief against the vaccine was not connected to her faith and therefore did not amount to Creed within the meaning of the Code. A grievance was subsequently filed by the Ontario Nurses’ Association (“ONA” or the “Union”).
The Parties’ Positions
ONA submitted that the real issue to be determined is whether the Grievor has a bona fide belief in creed and whether that belief supports her exemption request. The Union, therefore, argued that the Grievor held a sincere belief that prevented her from getting vaccinated, as doing so would be tantamount to condoning abortion.
The Employer, by contrast, asserted that the fundamental question was whether the Grievor sincerely believed that receiving a Covid-19 vaccine interfered with her faith and/or whether her refusal was part of an overarching set of beliefs consistent with her conduct or practices. PHSD reasoned that such a conclusion could not be reached, given the Grievor’s actions in every other context of her life. More specifically, the Employer pointed to a number of inconsistencies with respect to the Grievor’s conduct including the fact that she opposed the vaccine before she became aware of its use of fetal cell lines and that she took no steps to investigate the use of fetal cell lines in the development of other medicines that both she and her family were taking, among other things.
Decision
In his decision, Arbitrator Herman recognizes that although the Roman Catholic Church urges its members to get vaccinated, the issue to be determined not does depend on what religious leaders suggests or whether an individual’s actions are in conformity with the position of religious officials. Rather, what is required is a nexus with the religion or Creed.
Arbitrator Herman goes on to note that just because the Latin Mass community allows its members the choice on whether they would like to be vaccinated, does not mean that the decision is merely a preference or a singular belief. Rather, the individual decision is consistent with how one chooses to apply their faith consistent with the general requirement that members are to avoid condoning, cooperating with or participating in abortion.
Arbitrator Herman conceded that some of the inconsistencies, as pointed out by PHSD, did raise some questions with respect to the Grievor’s sincerity in claiming that her faith prevented her from getting vaccinated. Nevertheless, Arbitrator Herman determined that the Employer did discriminate against the Grievor in denying her request for exemption, when he considered the Grievor’s testimony in combination with other elements of her life, including the fact that her faith formed a major part of her life, and that she conducted herself in a manner consistent with her understanding of the Latin Mass doctrine, among other things. The Grievor was therefore found to have held a sincere belief against vaccination, with a sufficient nexus to her Creed. The matter was remitted to the parties.
Key Takeaways
While Arbitrator Herman appears to have extended significant deference to the Grievor in this case despite several inconsistencies with respect to her conduct, it remains to be seen what other arbitrators and/or courts will do when confronted with creed-based exemptions under the Code. Similarly, Arbitrator Herman’s decision suggest that, provided an individual holds a sincerely held belief connected to their creed, accommodation under the Code may be warranted. Factors such as positions taken by leading religious officials and even remote connections between Covid-19 vaccines and fetal cell lines will not necessarily impact the sincerity of a belief or its connection to a particular religion or creed.