An Ontario arbitral decision found in favour of an employee who had been placed on a leave of absence and subsequently discharged due to her refusal to be vaccinated based upon her religious beliefs. ¹

Generally speaking, an employee should be allowed accommodation on the basis of a medical exemption or creed and hence be exempted from a mandatory vaccine policy. The duty to accommodate is reviewed in more detail here.

This is so despite the position taken by the Ontario Human Rights Commission to the effect that a person who voluntarily refuses vaccination has no right to accommodation. The OHRC policy paper has noted that singular beliefs do not provide protection on the basis of creed.

In the case under review, the employee had been a devout Roman Catholic for 17 years. She was also a member of Latin Mass, a more traditional form of worship for the most recent 6 years.

The policy of the employer’s, a provider of public health services, mandated a vaccination unless an exemption was provided. The employee’s request to this effect was denied on the basis that this was a “singular belief”. This resulted in a leave of absence followed by termination.

The arbitrator found that the essence of the creed protected status was the person’s sincerity of the held belief. In this instance, the employee asserted that she could not participate in the use of fetal cells which were used to develop the vaccine. While the arbitrator noted that the fetal cells used were thousands of generations removed from the original fetus cells, nonetheless her views were held in good faith and that , hence, her use of such vaccines would be contrary to her creed’s strong disapproval of abortion. The ratio was as follows:

“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).

Hence, the employee’s views could not be seen as a “singular belief” as the Latin Mass principles oppose contraception and abortion.

Arbitral decisions do not bind common law courts but nonetheless they are often influential.

Much to the same impact is the decision of Wilfrid Laurier v UFCW.