Claim of discrimination based on creed requires assessment; no evidence of disability or association being factors: tribunal
The Ontario Human Rights Tribunal, in an interim decision, has dismissed allegations of discrimination based on disability and association brought by a hospital worker related to her COVID-19 vaccination refusal, but has allowed her complaint of discrimination based on creed to continue to a hearing.
The worker was employed as a registered nurse at Woodstock General Hospital (WGH) in Woodstock, Ont., starting in February 2019.
In August 2021, the Ontario Ministry of Health issued a directive requiring every hospital in the province to implement a COVID-19 vaccination policy for employees. WGH responded by announcing to its employees that they must provide proof of full COVID-19 immunization by Sept. 7 or else they would have to submit to regular antigen testing with negative results before each shift.
According to the worker, a member of WGH’s administration told her on Sept. 2 that all non-vaccinated staff would have to undergo rapid antigen testing before every shift, in front of a patient’s room where she believed that the patient could have overheard it. She argued this was a breach of her privacy, for which she filed a grievance.
Vaccination policy
On Sept. 7, WGH implemented its vaccination policy for all employees except those who were exempt from vaccination because of a disability. Proof of a medical exemption was required. Employees who failed to comply with the policy would be placed on unpaid leave and could be “subject to discipline, up to and including termination.”
Two days later, a manager wrote to the worker directing her to undergo rapid testing. The worker went on stress leave instead.
WGH amended the policy and extended the deadline to be fully vaccinated – two doses of the vaccine – by Nov. 17. On Oct. 5, WGH called the worker to inquire about her vaccination status, although she was still on stress leave. It followed up with a letter placing her on an unpaid leave of absence effective Oct. 25 because she hadn’t received her first dose. She was also told HR would schedule a meeting to discuss her continued employment.
On Jan. 5, 2022, WGH management called the worker to discuss her vaccination status. One month later, she was told her employment would be terminated if she didn’t get vaccinated. WGH “strongly encouraged” her to resign instead of face termination so she did. She claimed she only resigned because of the “threats” and because she was in a “diminished mental state.”
Discrimination allegations
The worker filed a human rights application alleging discrimination on the grounds of creed, disability, and association, as well as reprisal contrary to the Ontario Human Rights Code. She named WGH, the Ontario Nurses' Association (ONA) – for declining to pursue grievances related to her unpaid leave and a breach of privacy - and the Ministry of Health as respondents.
The tribunal directed the worker to provide written submissions related to four issues it identified:
-
The worker didn’t provide any information linking the adverse treatment she faced to her creed, disability, or association.
-
She didn’t identify her creed or explain how it prevented her from receiving a vaccine.
-
She didn’t identify her disability or explain how it interfered with her ability to receive a vaccine.
-
She didn’t explain how the respondents’ conduct could constitute reprisal under the code.
The tribunal also requested information from a licensed health-care provider regarding her disability and its impact on her ability to be vaccinated.
The worker submitted that her creed was “rooted in Judeo-Christian ideology” and prevented her from receiving the COVID-19 vaccine because the use of stem cell tissue or research derived from aborted fetuses offended her creed. She also referred to the Ten Commandments but said her “theological belief structure” would required “every Holy Book that exists.”
Creed and discrimination
The tribunal found that the allegation of discrimination because of creed against fell within its jurisdiction and could proceed. However, there was no evidence that the actions of the Ministry or the ONA were linked to her creed, the tribunal said.
However, the tribunal found no factual basis for the allegations of discrimination because of disability or association, or for reprisal. The worker claimed that WGH infringed her right to equal treatment in employment because of her “anxiety and fear around treating adverse reactions”, but she didn’t provide any medical evidence to support her claim that her anxiety met the definition of disability under the code. As a result, she wouldn’t be able to show a link to the adverse impact she experienced with a code-protected ground, the tribunal said.
Regarding the claim of discrimination because of association, the worker provided no details or information, despite referring to it on her application. There worker made no allegation that WGH discriminated against her because she associated with anyone, so there was no basis for this claim, the tribunal said.
Allegations of reprisal
As for the worker’s allegation of reprisal, the tribunal noted that the worker had to explain how her dismissal was an action taken because she asserted her rights under the code. The worker claimed that she was targeted after she refused to undergo a medical treatment and sought accommodation based on her religious beliefs. However, the tribunal found that the worker presented no factual basis that WGH’s actions – such as directing her to comply with the policy, informing her of the consequences of non-compliance, and imposing the consequences - were because she claimed rights under the code rather than failing to comply with the vaccination policy.
The tribunal dismissed the allegations of discrimination because of disability and association, along with the allegation of reprisal. The allegation of discrimination because of creed against WGH only was allowed to continue.
