Worker said 'God's superiority over man-made creations' prohibited him from receiving vaccine
“When dealing with an objection in the workplace on the basis of religion, make sure that you’re collecting as much information as you can about not only the objection and the employee’s belief in why they’re objecting, but also how their belief relates to the teachings of the particular religion.”
So says Madeleine Loewenberg, an employment lawyer, workplace investigator, and mediator at Loewenberg Psarris Workplace Law in Toronto, referring to a recent ruling by the Federal Public Sector Labour Relations and Employment Board. The board determined that a worker who sought a religious exemption from the federal government’s COVID-19 vaccination requirement for public service employees had a legitimate, sincerely held religious belief preventing him from getting vaccinated.
In October 2021, the federal government enacted the “Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police,” which required all employees in the core public administration of the federal government to be fully vaccinated. Employees who were unable to be vaccinated due to “a certified medical contraindication, religion, or any other prohibited ground of discrimination as defined in the Canadian Human Rights Act” were accommodated to the point of undue hardship.
Accommodation measures for employees who couldn’t be vaccinated included teleworking, alternate duties, mandatory COVID-19 testing, or a combination of these measures.
The policy gave a deadline of Oct. 29 for employees to either attest that they had been vaccinated or request accommodation. Employees who couldn’t justify an accommodation request and remained unvaccinated were placed on an unpaid leave of absence.
Request for accommodation
On the deadline day, Oct. 29, the worker – who was employed with the Department of Public Safety and Emergency Preparedness - applied for accommodation on the basis of his religious beliefs, asserting that his Christian faith in “God’s superiority over man-made creations” prohibited him from receiving the vaccine. He stated that his beliefs required him to avoid medication unless it was absolutely necessary to sustain his life, as relying on medical interventions would demonstrate a lack of faith in God’s power to heal. He further cited his belief that his body was a temple and that receiving the vaccine would contradict his conscience and religious principles.
The employer sought additional clarification through a standardized questionnaire addressing common religious objections to the vaccine. The worker reiterated that his refusal was based on his faith in “God’s power to heal” and not on secular considerations. When asked why his beliefs differed from religious leaders who were in favour of vaccines, the worker said that “my beliefs are mine” and “not following the word of God would be in direct contradiction of my beliefs and would be renouncing my faith in God.”
The employer’s process involving the application for accommodation and supplementary questionnaire was well-advised, because information gathering is an important element of accommodation, according to Loewenberg.
“In any case where the employer has to accommodate an individual for any reason that might form the basis of a complaint under human rights legislation or a grievance that raises human rights concerns, the issue is going to be whether or not it asked for sufficient information that would allow them to make or decline the accommodation,” she says.
On Feb. 17, 2022, the employer rejected the worker’s accommodation request, placing him on unpaid leave as of March 18. The worker remained on unpaid leave for four months until the vaccination policy was suspended on June 20, at which point he returned to work.
The worker filed a grievance, which was denied at the departmental level and subsequently referred to adjudication.
Religious beliefs
The board applied the legal test established by the Supreme Court of Canada in Syndicat Northcrest v. Amselem, 2004 SCC 47, which requires that a claimant: demonstrate a belief or practice with a nexus to religion, even if not mandated by official religious doctrine; and prove sincerity in holding that belief.
The board found that the worker met both criteria, determining that his belief in avoiding unnecessary medical intervention had a clear religious nexus and citing previous arbitration decisions that recognized similar beliefs relating to the body as a temple as religious in nature. It wasn’t necessary to identify a denomination of Christianity, as the employer didn’t ask the worker about it and “the law doesn’t distinguish between religions; nor does it distinguish between denominations of religion” in relation to a nexus to religion, the board said.
The board also noted that the worker consistently maintained his position throughout the process and didn’t alter his rationale – the worker testified that he never took medication that wasn’t necessary to sustain his life and that it was part of “a comprehensive non-denominational Christian faith” – supporting the worker’s claim that his beliefs were sincere.
The board further found that the vaccine mandate posed a more than trivial or insubstantial interference with the worker’s religious beliefs. Facing the choice of violating his beliefs or being placed on unpaid leave from his job was a significant impact, said the board.
The Board allowed the worker’s grievance, concluding that he was entitled to a religious exemption under the vaccine policy. As the parties had requested a bifurcated process, the question of an appropriate remedy was to be addressed separately.
Nexus to religious tenets
The decision raises questions about how the test for religious beliefs warranting accommodation was applied in these circumstances, says Loewenberg.
“There's a reason why these cases are, not exclusively, but often unsuccessful, is because the case law has been really clear that simply articulating a belief or claiming that it's sincerely held isn't enough - you've got to link the objection to something specific in the religious belief that explains how or why it would be inconsistent to take the vaccination.”
Loewenberg refers to other recent cases in Ontario and Alberta where religious beliefs weren’t proven as a reason to decline vaccination, where employees made a general statement that the refusal to be vaccinated aligns with Christian faith, but they didn’t identify an objective religious precept that required them to do so. In fact, the Alberta Human Rights Tribunal found that information supporting an objection to taking a vaccine has to show that it’s a tenet of the faith, she says.
“It strikes me that [the worker] said it was his belief and it was sincerely held, but seemingly he didn't have to tell the board how being Christian impacted his decision,” says Loewenberg. “He does what all of the decisions say we shouldn't be doing, which is allowing someone who makes a general statement that their refusal aligns with the Christian faith is sufficient, and historically it hasn't been.”
“There’s nothing in the decision that suggests that there's anything about the religion that precludes taking the vaccine - in fact, the decision even says some people who are Christian would take it and others wouldn't take it, which implies that this is not a fundamental tenet of the religion,” she adds. “I feel like this decision takes a little bit of a right turn because it overly relies on what the worker said is his belief without anything more – [the case law] says personal belief isn't sufficient to permit someone to refuse to take the vaccine, but that seems to be exactly what's happening in this decision.”
Loewenberg suggests that employers faced with a complaint related to religious accommodation ensure that they’re familiar with the two steps to determine religious beliefs requiring accommodation – and that the adjudicator is, too.
“Something can be sincerely believed but also not required by a religion, and something can be required by a religion and not be sincerely believed,” she says. “There are two avenues for an employer [and adjudicator] to consider, and I think they got smushed together in this decision – a step got lost.”
