'The mistake employers often make is moving right to challenging whether it's an honestly held belief'
“It’s of little use to consider challenging either the veracity of [an employee’s] honestly held belief or the tenets of the restrictions they’ve requested, where there's some connection to a religious belief. The focus of the employer’s response should be determining if there’s accommodation available or if you’ve met the point of undue hardship.”
So says Michael Horvat, a partner in the Workplace Law Group at Aird & Berlis in Toronto, after an arbitrator found that a railway company failed to accommodate a worker who refused a vaccine mandate due to religious reasons.
The worker was a rail traffic controller for Canadian National Railway (CN). On Oct. 29, 2021, Transport Canada issued a ministerial order that required employees in the rail industry to be vaccinated against COVID-19. The order allowed for exemptions on medical or religious grounds.
CN developed a mandatory vaccination policy with a process for employees to apply for medical or religious exemptions. If such an exemption was established, CN was subject to its legal obligations to accommodate. The policy was announced on Sept. 8 with a deadline for vaccination of Nov. 1.
The federal government issued a document with guidelines for railway companies stating that they must provide for accommodation measures, including COVID-19 testing every 72 hours, for any employees who were exempted from the vaccination requirement. The guidelines also noted that religious exemption didn’t apply to “beliefs, convictions or practices that are secular” or “false empirical beliefs about the development, the contents, effects, or purposes of the vaccines.”
Request for religious exemption
The worker requested a religious exemption on Sept. 8, saying that she believed in “the Biblical sanctity of human life and the prohibition from the shedding of innocent blood.” She said that this included “ingesting or benefitting from products derived from or tested using aborted fetal cell lines.”
CN denied the worker’s request, finding that she had failed to establish that she had a faith-based practice or belief that precluded vaccination. The worker asked for a reconsideration, adding that all of the currently available vaccines were produced by or connected to aborted fetal cell lines and her “sincerely held religious beliefs demand that I abstain from accepting or injection to any of these products into my body.”
CN reviewed the facts and once again rejected her application, saying that she was required to be fully vaccinated by Nov. 15.
The worker responded that the sincerity of her belief was a fact and it didn’t need to be “required by official religious dogma nor need it be in conformity with the position of religious officials.” CN replied that vaccination was a condition of employment and she could choose not to be vaccinated, with the understanding that her privilege to work with CN would be suspended or terminated.
On Nov. 3, the worker provided results of a recent COVID-19 antibody test to determine her level of “God-given natural immunity” from a previous infection. She also included two articles and a scientific study indicating that all vaccines used aborted fetal stem cells in the testing phase. CN countered that fetal cells were used in two of the vaccines but not in the Moderna or Pfizer vaccines, although the cell lines were used in early stages of research and development.
Unpaid administrative leave
On Nov. 16, CN placed the worker on unpaid administrative leave and informed her that she would be terminated effective Jan. 11, 2022, for failure to comply with the vaccine mandate. It provided a record of employment stating that she was being “dismissed.”
On Jan. 7, 2022, the worker provided proof of vaccination and CN cleared her to return to work. On June 17, the ministerial order was repealed.
The worker filed a grievance alleging that CN failed to accommodate her religious beliefs. The union argued that the worker established her sincere religious beliefs and there was a connection between her vaccination refusal and those beliefs.
The arbitrator noted that religious belief was a protected ground under the Canadian Human Rights Act and the collective agreement. To prove discrimination, the worker had to meet the three-part test – she had a protected characteristic, she experienced an adverse impact, and the protected characteristic was a factor in the adverse impact.
The arbitrator also noted that the Supreme Court of Canada set a test for determining whether a belief was a religious belief in its decision of Syndicat Northcrest v. Amselem, 2004 SCC 47 – a practice or belief having a nexus with religion that calls for a particular line of conduct, of which the person has a sincere belief. To establish if a practice or belief was religious, a person isn’t required to prove that it’s supported by a mandatory doctrine of faith, as that would be too restrictive, according to the top court.
Connection between belief and religion
The arbitrator found that the worker didn’t object to vaccination because the vaccines contained fetal cells, but because fetal cell lines were used in their research and development. This applied to all COVID-19 vaccines, so the worker was proceeding based on correct scientific knowledge, the arbitrator said.
The arbitrator also found that the worker linked the use of fetal cell lines in vaccine development with her religious belief in the sanctity of life. This established that if the worker was vaccinated, it would have impacted her “personal connection to the divine” and she considered it an “abominable sin to God.”
The arbitrator noted that the Supreme Court established that a religious belief didn’t have to be supported by a mandatory doctrine of faith, so CN didn’t need to “delve with any depth into the sincerity” of the worker’s belief.
The arbitrator also found that the fact that the worker became vaccinated in January 2022 didn’t make her beliefs less sincere, as she only did it when faced with losing her employment. Making the difficult decision to compromise her faith or lose her income didn’t make her beliefs less sincere, said the arbitrator.
The arbitrator determined that the worker’s religious beliefs were connected to the adverse impact she suffered. As a result, the burden shifted to CN to establish that it took all necessary steps to accommodate the worker to the point of undue hardship.
Accommodation measures
The arbitrator noted that the ministerial order referred to accommodation measures such as COVID-19 tests every 72 hours. However, CN didn’t provide any evidence why such testing couldn’t be successful, so undue hardship wasn’t proven, said the arbitrator.
The arbitrator determined that the worker established a need for accommodation on religious grounds and CN failed to meet its duty to accommodate. The company was ordered to make the worker whole for all losses.
“The ministerial order contemplated that there could be exceptions to mandatory vaccination on religious grounds and the guidelines clearly stated that for those employees to whom exceptions applied, their company was required to provide for accommodation measures,” says Horvat. “But it doesn't seem to align with the other Ontario jurisprudence, for example, that was more closely aligned with respect to religious exemption and undue hardship, as at the time the pandemic was still a significant issue.”
This decision is a product of the passage of time from when the events took place at the height of the pandemic, according to Horvat.
“There was [arbitral] support at the time that you could have this honestly held belief that supported not getting vaccinated, but it was entirely appropriate for the employer to hold you out from work,” he says. “That it was undue hardship to let someone come to work unvaccinated seemed like a reasonable decision when we were all lining up to get our groceries, we couldn't cross the border, and we couldn't be in pockets of more than 10 people - this is a decision that's completely forgotten those facts.”
“Now, should that have resulted in termination of employment at a point in time, did the policy no longer become enforceable and the individual should be returned to work because of other factual changes - that doesn't seem to have been broached in this decision, while other arbitrators have said it may have been an appropriate rule and procedure at the time,” he adds.
Ultimately, CN’s misstep was to focus on whether the request for religious exemption was in line with its own understanding of religious tenets and whether the worker’s beliefs were sincere, says Horvat.
“It’s much more effective to respect the religious objection and the Human Rights Code by engaging with the employee to say, ‘How can we work together and what are the ways we can accommodate?’ he says. “I think the mistake employers often make is moving right to challenging whether it's an honestly held belief or whether it meets their understanding of the tenets of the religion - and that's exactly what the Supreme Court in Amselem said not to do.”
See Canadian National Railway and Teamsters Canada Rail Conference (Fink), Re, 2024 CarswellNat 2336.
