Arbitrator Allows Religious-Based Exemption From Covid-19 Mandatory Vaccination Policy
April 11, 2023
Article by:
Gabrielle Berron-Styan
Previously printed in the LexisNexis Labour Notes Newsletter.
In the recent case of B.C. Rapid Transit Co. v. Canadian Union of Public Employees, Local 7000 (Morzhakov Grievance), [2022] B.C.C.A.A.A. No. 114 (Noonan), Arbitrator Randall Noonan held that an employer violated an employee’s rights under the B.C. Human Rights Code when it refused to grant a religious accommodation in relation to its COVID-19 mandatory vaccination policy.
Facts
The employer implemented its COVID-19 Safety Vaccination Policy requiring all employees to be fully vaccinated by December 20, 2021, unless they received an accommodation on the basis of a ground protected under the Human Rights Code.
The grievor was employed as an Asset Integration Monitor. He was brought up in the Ukrainian Orthodox Church and taught that his body was sacred so he should not smoke or drink or alter his body. He had never received an injection.
In response to the vaccination policy, the grievor sought an exemption from being vaccinated based on his religious belief.
In order to determine whether the grievor had a sincerely and honestly held religious belief in respect of vaccination, the employer asked him to provide information about the following:
- his religious belief;
- how his religious belief led him to object to vaccinations generally, including the COVID-19 vaccination;
- how his belief was connected to his faith; and
- how or why his faith required this belief.
The grievor told the employer he believed that people “are created in the image of God”, God wants people to use prayer to heal the body, and he was therefore opposed to all vaccinations. He cited, among other things, a biblical passage to support his belief and indicated his views “correlated” with those of his church.
The employer sought further information from the grievor, including whether in addition to vaccines, he also objected on the basis of his religious belief to all other medication or medical treatment. The grievor responded that he only participated in alternative medical treatment and provided a note from his physician confirming this.
After a number of exchanges, the grievor eventually disclosed that his physician had prescribed pharmacological medication to him in the past. He stated he had reluctantly taken that medication after being in a severe car crash in 2018.
The employer denied the grievor’s exemption request on the basis that his religious belief did not appear to have prevented him from receiving conventional medication in the past.
Decision
Arbitrator Noonan allowed the grievance. He found that the grievor was entitled to a religious exemption from the vaccination policy.
In arriving at his conclusion, Arbitrator Noonan relied on the seminal decision of the Supreme Court of Canada in Syndicat Northcrest v. Amselem, 2004 SCC 47, which held that a claimant seeking to rely on his or her freedom of religion should not need to prove the objective validity of his or her belief or that the belief is objectively recognized as valid by other members of the same faith.
The arbitrator held that the issue to be determined, and which the employer should have addressed, was not whether the grievor’s religion required him to abstain from vaccination but whether abstention from vaccination was the sincerely held religious belief of the grievor.
On that basis, the arbitrator had no difficulty finding that the grievor’s refusal to be vaccinated was based on his sincerely held religious belief that it was wrong for him to be vaccinated. There was no evidence whatsoever that the grievor adopted his religious view of vaccination in response to COVID-19 or as a mere pretense to avoid vaccination for political or other secular motives.
Arbitrator Noonan then considered the employer’s line of inquiry in trying to determine whether the grievor’s belief was sincerely held. The arbitrator found that by asking the grievor questions about other beliefs not specifically related to the issue at hand, i.e. the issue of vaccination, the employer “went into an inquisition mode that went well beyond minimal”. The employer could not rely on the fact that the grievor had taken medication while in severe pain to conclude he did not have a sincerely held religious belief that vaccination offended his relationship to God.
The arbitrator found that the grievor was entitled to reasonable accommodation under the Human Rights Code and left the matter for the parties to sort out. He also awarded the grievor back pay and human rights damages for injury to dignity, feelings and self-respect but did not set the amounts and “[left] both those issues to the parties for negotiation”. He retained his jurisdiction as arbitrator and suggested that “quantum … could well be affected by the accommodation ultimately afforded to the Grievor”.
Takeaways
This case highlights how important it is for employers to carefully assess requests for religious exemption from a mandatory vaccination policy. Employers can and should engage employees in a conversation to understand the nature of their accommodation request. They should, however, be careful not to go too far in their questioning to avoid what Arbitrator Noonan characterized as an “inquisition”. Any inquiry into the sincerity of an employee’s belief should be as limited as reasonably possible, and should only be used to ensure that his or her accommodation request is being made in good faith and based on need as opposed to personal preference. The fact that an employee’s particular practice or belief is not required by official religious dogma or not in strict conformity with the position of religious officials or other adherents to the faith does not mean that the employee’s belief is not a sincerely held religious belief.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.
April 11, 2023
Previously printed in the LexisNexis Labour Notes Newsletter.
In the recent case of B.C. Rapid Transit Co. v. Canadian Union of Public Employees, Local 7000 (Morzhakov Grievance), [2022] B.C.C.A.A.A. No. 114 (Noonan), Arbitrator Randall Noonan held that an employer violated an employee’s rights under the B.C. Human Rights Code when it refused to grant a religious accommodation in relation to its COVID-19 mandatory vaccination policy.
Facts
The employer implemented its COVID-19 Safety Vaccination Policy requiring all employees to be fully vaccinated by December 20, 2021, unless they received an accommodation on the basis of a ground protected under the Human Rights Code.
The grievor was employed as an Asset Integration Monitor. He was brought up in the Ukrainian Orthodox Church and taught that his body was sacred so he should not smoke or drink or alter his body. He had never received an injection.
In response to the vaccination policy, the grievor sought an exemption from being vaccinated based on his religious belief.
In order to determine whether the grievor had a sincerely and honestly held religious belief in respect of vaccination, the employer asked him to provide information about the following:
- his religious belief;
- how his religious belief led him to object to vaccinations generally, including the COVID-19 vaccination;
- how his belief was connected to his faith; and
- how or why his faith required this belief.
The grievor told the employer he believed that people “are created in the image of God”, God wants people to use prayer to heal the body, and he was therefore opposed to all vaccinations. He cited, among other things, a biblical passage to support his belief and indicated his views “correlated” with those of his church.
The employer sought further information from the grievor, including whether in addition to vaccines, he also objected on the basis of his religious belief to all other medication or medical treatment. The grievor responded that he only participated in alternative medical treatment and provided a note from his physician confirming this.
After a number of exchanges, the grievor eventually disclosed that his physician had prescribed pharmacological medication to him in the past. He stated he had reluctantly taken that medication after being in a severe car crash in 2018.
The employer denied the grievor’s exemption request on the basis that his religious belief did not appear to have prevented him from receiving conventional medication in the past.
Decision
Arbitrator Noonan allowed the grievance. He found that the grievor was entitled to a religious exemption from the vaccination policy.
In arriving at his conclusion, Arbitrator Noonan relied on the seminal decision of the Supreme Court of Canada in Syndicat Northcrest v. Amselem, 2004 SCC 47, which held that a claimant seeking to rely on his or her freedom of religion should not need to prove the objective validity of his or her belief or that the belief is objectively recognized as valid by other members of the same faith.
The arbitrator held that the issue to be determined, and which the employer should have addressed, was not whether the grievor’s religion required him to abstain from vaccination but whether abstention from vaccination was the sincerely held religious belief of the grievor.
On that basis, the arbitrator had no difficulty finding that the grievor’s refusal to be vaccinated was based on his sincerely held religious belief that it was wrong for him to be vaccinated. There was no evidence whatsoever that the grievor adopted his religious view of vaccination in response to COVID-19 or as a mere pretense to avoid vaccination for political or other secular motives.
Arbitrator Noonan then considered the employer’s line of inquiry in trying to determine whether the grievor’s belief was sincerely held. The arbitrator found that by asking the grievor questions about other beliefs not specifically related to the issue at hand, i.e. the issue of vaccination, the employer “went into an inquisition mode that went well beyond minimal”. The employer could not rely on the fact that the grievor had taken medication while in severe pain to conclude he did not have a sincerely held religious belief that vaccination offended his relationship to God.
The arbitrator found that the grievor was entitled to reasonable accommodation under the Human Rights Code and left the matter for the parties to sort out. He also awarded the grievor back pay and human rights damages for injury to dignity, feelings and self-respect but did not set the amounts and “[left] both those issues to the parties for negotiation”. He retained his jurisdiction as arbitrator and suggested that “quantum … could well be affected by the accommodation ultimately afforded to the Grievor”.
Takeaways
This case highlights how important it is for employers to carefully assess requests for religious exemption from a mandatory vaccination policy. Employers can and should engage employees in a conversation to understand the nature of their accommodation request. They should, however, be careful not to go too far in their questioning to avoid what Arbitrator Noonan characterized as an “inquisition”. Any inquiry into the sincerity of an employee’s belief should be as limited as reasonably possible, and should only be used to ensure that his or her accommodation request is being made in good faith and based on need as opposed to personal preference. The fact that an employee’s particular practice or belief is not required by official religious dogma or not in strict conformity with the position of religious officials or other adherents to the faith does not mean that the employee’s belief is not a sincerely held religious belief.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.