An Ontario arbitrator recently found that an employee was entitled to an exemption from her employer’s mandatory vaccination requirement due to her creed, despite the questionable sincerity of her belief that her creed prevented her from being vaccinated. In particular, the Arbitrator in Public Health Sudbury & Districts v Ontario Nurses’ Association [PHSD v ONA] held that the grievor’s employer discriminated against her on the basis of creed by not granting her an exemption from its mandatory vaccination requirement, due to her belief that she could not be vaccinated against COVID-19 because this would amount to condoning abortion.

PHSD v ONA is a concerning decision for employers who have implemented mandatory vaccination requirements in order to safeguard health and safety in their workplaces during the pandemic, because the Arbitrator upheld the grievor’s creed-based exemption even though she arguably did not sincerely believe her creed prevented her from being vaccinated.

Public Health Sudbury & Districts v Ontario Nurses’ Association

In PHSD v ONA, the grievor’s employer implemented a policy that required all employees to be fully vaccinated against COVID-19 unless they could not be vaccinated for reasons related to protected grounds under the Human Rights Code, such as creed and disability.

The grievor submitted a request for an exemption based on her creed, but her employer denied the request on the basis that a singular belief against vaccination does not amount to a creed under the Code. The grievor was then placed on an unpaid leave of absence and her employment was subsequently terminated due to her failure to comply with the vaccination policy. As a result, the union filed a grievance and argued that the employer had discriminated against the grievor by refusing her request for an exemption from its mandatory vaccination requirement, and her subsequent suspension and dismissal.

At arbitration the grievor testified that, as a follower of the Latin Mass approach to Roman Catholicism, she believed she could not be vaccinated against COVID-19 because doing so would be condoning, cooperating in, or participating in abortion, due to the use of fetal cell lines in the research/development of such vaccines. For context, it is notable that:

• fetal cell lines are “cells grown in a laboratory” which “descend from cells taken from fetuses aborted in the 1970s and 1980s”;
• “current fetal cell lines are thousands of generations removed from the original fetal tissue” and “do not contain any tissue from a fetus”;
• fetal cell lines were used in the research and development of the Moderna and Pfizer COVID-19 vaccines, but not to actually make them;
• Latin Mass doctrine opposes abortion, but it neither prohibits nor requires its members to be vaccinated; and
• the Pope approved a statement that it was morally acceptable for Catholics to be vaccinated against COVID-19, and that doing so “would not be inappropriate cooperation with the evil of abortion as the connection with fetal tissue was too remote”.

The employer argued at arbitration that the grievor decided not to get vaccinated for non-creed based reasons and then “latched on to the ‘faith’ rationale once she realized it might enable her to claim an exemption”. The employer further argued that the grievor’s actions in “virtually every other context” were inconsistent with her claim that she could not be vaccinated against COVID-19 due to her creed. The employer pointed out 13 of these “inconsistencies”, which included that:

• the grievor opposed getting vaccinated against COVID-19 before she knew that they had any connection with fetal cell lines;
• the grievor and her family continued to use various medicines without her ever inquiring into whether they were similarly connected with fetal cell lines;
• the grievor administered vaccines that are connected with fetal cell lines to others in her role as a nurse, without objection;
• the grievor gave no weight to the fact that the Pope had stated that Catholics had a moral obligation to get vaccinated against COVID-19; and
• the grievor received vaccines in the past that were connected to fetal cell lines, without her inquiring into whether there was such a connection.

The Arbitrator’s Decision

As noted above, the Arbitrator ultimately ruled that the employer discriminated against the grievor by not granting her an exemption to its vaccination requirement. In reaching this conclusion, the Arbitrator noted that the Ontario Human Rights Commission (the “OHRC”) has defined a creed as “a comprehensive and overarching system of belief that governs one’s conduct and practice” which:

• is sincerely, freely, and deeply held;
• is integrally linked to a person’s identify;
• addresses ultimate questions of human existence; and
• has some “nexus” to a community or organization with a shared belief system.

The Arbitrator further noted that the OHRC has issued a policy statement on COVID-19 vaccination mandates, which states that personal preferences and singular beliefs against vaccination are not a creed and are not protected by the Code.

After reviewing relevant case law, the Arbitrator held that the grievor was entitled to an exemption under the Code because he found that she sincerely believed that getting vaccinated would interfere with her faith and this belief had a “sufficient nexus” to her creed. In reaching this finding, the Arbitrator noted that:

• Latin Mass doctrine not addressing whether getting vaccinated is condoning abortion does not mean that the grievor’s decision not to get vaccinated was due to a mere preference or singular belief;
• an individual’s decision as to what their faith requires of them to avoid condoning abortion, as a matter of how one interprets and applies their faith, has a “nexus” to the individual’s creed;
• the grievor is entitled to an exemption so long as she sincerely believes that her faith does not allow her to get vaccinated, even if there are also other non-creed based reasons as to why the grievor objected to getting vaccinated; and
• whether the connection between vaccines and fetal cell lines is “too remote” to reasonably amount to condoning abortion is irrelevant so long as the grievor is sincere in her belief.

Interestingly, the Arbitrator stated that it was “difficult to understand logically” why the grievor’s faith did not require her to consider whether she can continue to take medicines that are linked to fetal cell lines, or why it does not prohibit her from administering vaccines connected to fetal cell lines to others, if the reason that she cannot get vaccinated is the connection between fetal cell lines and vaccines. Although the Arbitrator acknowledged that these “inconsistencies” do “raise questions” about the sincerity of the grievor claiming her faith prevents her from being vaccinated, he found it was “unlikely” that she simply fabricated a creed-based claim for an exemption in order to avoid getting vaccinated because she is a “devout member of the Latin Mass community” and fabricating this would be a “substantial repudiation” of her purported beliefs.

Takeaways

PHSD v ONA demonstrates that employer’s attempting to dispute an employee’s position that they cannot be vaccinated for creed-based reasons will be required to collect strong evidence to support the employer’s position. The decision suggests that employees may be given significant deference when the sincerity of their belief is in question for the purposes of determining whether there is an obligation to accommodate.

Employers should note that PHSD v ONA is not binding on the Ontario courts, tribunals, or other arbitrators—as a result, they could decide a nearly identical case differently, such as by more closely scrutinizing whether the purported creed-based belief is actually sincere. Ultimately, given that this is the first reported Ontario decision where a creed-based vaccination exemption was upheld, only time will tell how similar cases will be decided going forward. Nevertheless, employers facing these situations will be well-advised to carefully document their accommodation processes, the reasons for any denial of accommodation, and to marshal their strongest evidence in support of such a decision in the event of a challenge.