Conflicts between unionized workers are generally resolved through the grievance and arbitration process outlined in their collective agreements. The discipline or discharge of employees can be challenged through arbitration, where employers must demonstrate just cause for disciplining employees.
We have previously reported on union challenges to employers’ mandatory COVID-19 vaccination policies. These policies allow exceptions for employees who can establish that they are unable to take a COVID-19 vaccine for a reason protected by the Ontario Human Rights Code.
This article looks at the recent arbitration decision of Public Health Sudbury & Districts v Ontario Nurses’ Association, in which a union filed a grievance on behalf of an employee after her request for a COVID-19 vaccination exemption on the basis of creed was denied by her employer.
The grievor was employed as a public health nurse. In August 2021, her employer developed a COVID-19 vaccination policy. As the pandemic unfolded, the employer required all employees to be fully vaccinated unless a legitimate medical exemption applied or an exemption was otherwise required by the Human Rights Code. Remaining unvaccinated employees would be subject to a leave of absence followed potentially by termination.
The grievor applied for an exemption. She explained that the COVID-19 vaccines used fetal cell lines in their research, and to receive one would be to condone, cooperate with, or participate in abortion. These cell lines are grown in a laboratory but descend from cells taken from fetuses aborted in the 1970s and 1980s. The current cell lines do not contain any tissue from a fetus and were not used to make the vaccines.
The grievor converted to Roman Catholicism after meeting her husband and later joined “the Latin Mass part of the Church”, which takes a more traditional and orthodox approach to worship. Members of this community oppose contraception and abortion, but Latin Mass neither prohibits nor requires members to take the COVID-19 vaccine.
The employer denied the exemption request on the basis that an employee’s singular belief against vaccinations does not amount to a creed within the meaning of the Human Rights Code. She was placed on an unpaid leave of absence.
The union filed a grievance on the employee’s behalf. It argued that she was discriminated against on the basis of the Human Rights Code-protected ground of creed.
According to an Ontario Human Rights Commission (OHRC) policy, creed includes religious beliefs and practices and may also include non-religious belief systems that substantially influence a person’s identity, worldview and way of life.
There are several characteristics to consider in determining whether a belief system is a creed under the Human Rights Code, including whether the beliefs are sincerely and deeply held, are linked to a person’s identity and govern one’s conduct.
According to the OHRC, personal preferences and singular beliefs do not amount to a creed and are not protected.
The employer argued that inconsistencies in the grievor’s conduct suggested her decision not to have the vaccine was based on matters unrelated to her faith, including:
- The grievor made the decision not to get vaccinated before she was aware of any connection between the vaccine and fetal cell lines.
- She took no steps to inquire whether other medications her family was taking had any connection to fetal cell lines.
- She gave no weight to the Pope’s exhortation that, on moral grounds, Catholics should get vaccinated, and her creed’s opposition to abortion is based on the right to life, but her stance puts lives at greater risk.
- The grievor had administered to others vaccines that are connected to fetal cell lines and had herself taken vaccines in the past that have connections to research using fetal cell lines.
Arbitrator explains that grievor needed to show belief linked to creed that called for particular conduct
Arbitrator Herman quoted Syndicat Northcrest v Amselem, the leading Supreme Court of Canada case on religious freedom, and said:
“The impact of this decision is that the grievor must demonstrate that she has a practice or belief, that has a nexus with her creed, that calls for a particular line of conduct, here the decision to not get vaccinated … To meet the requirement that an applicant must establish a link between the conduct in question and his or her creed, the Court has therefore determined that a “subjectively engendered” personal connection with the divine or one’s spiritual faith is sufficient.”
In other words, in order to claim an exemption on the basis of creed, there does not need to be an objective religious practice recognized by religious experts as being an obligatory tenet of a particular religion.
Arbitrator Herman found that there was a nexus between the belief and creed. Although the Latin Mass community took the position it was up to each member to decide on vaccination, the individual decision about what one’s faith requires of a member to avoid condoning abortion was a sufficient nexus to the individual’s creed.
The arbitrator decided that it was more likely that the grievor sincerely believed that to get vaccinated would be to act inconsistently with what her faith required of her. He said that the grievor would be entitled to an exemption if one of her reasons for objecting to vaccination was sincerely and legitimately based upon her creed. While he said it was “difficult to understand” some of her positions, he thought it was unlikely that the grievor simply latched on to a creed-based claim to avoid getting vaccinated.
As a result, the arbitrator decided that the grievor was discriminated against when the employer denied the grievor’s exemption.
Contact Grosman Gale Fletcher Hopkins LLP in Toronto for Assistance with Discipline or Discharge and Grievance Arbitrations
At Grosman Gale Fletcher Hopkins LLP, our team of knowledgeable, highly-respected labour lawyers has been advising unionized employers about discipline and discharge grievances and representing employers in grievance arbitrations since 1983. We help clients from across all sectors through the grievance process, advise on short-term and long-term strategies, and help maintain positive ongoing workplace relations. Contact us online or at 416-364-9599 to schedule a consultation for your labour relations issue.
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