No evidence of religious beliefs; mask, testing requirement reasonable in pandemic: tribunal
The Alberta Human Rights Tribunal has dismissed a worker’s complaint that a masking and rapid testing requirement during the pandemic was discriminatory based on his religious beliefs.
The worker was an employee of the City of Edmonton. On Sept. 20, 2021, the city implemented a policy requiring employees to either be fully vaccinated against COVID-19 by Oct. 31, which it stated was based on public health information and was aimed at preventing the spread of COVID-19. Unvaccinated employees had to wear a mask and submit results of rapid testing on a regular basis.
The worker made a request for a “religious mask exemption” and alleged that the policy discriminated against him on the basis of religious beliefs. In 2018, he had founded a faith called The Fellowship of the Wolf Edmonton that he claimed didn’t believe in vaccination.
However, the worker objected to attesting to his faith before a Commissioner for Oaths and claimed that there was no data to support the city’s policy. The city accommodated him by allowing him to work from home temporarily.
Religious exemption denied
On Nov. 5, the city advised the worker that his request for a religious exemption from wearing a mask was denied. Four days later, the worker met with a representative of the city’s labour relations team and his union representative. He agreed to wear a face mask and returned to the workplace on Nov. 10.
The city confirmed with the worker that it wasn’t mandatory for him to receive a COVID-19 vaccination and, in order to be allowed into the workplace, he had to wear an approved face mask and provide proof of a negative rapid test result within 72 hours of the start of each shift.
On Nov. 22, the worker filed a human rights complaint alleging that the city discriminated against him in the area of employment on the protected ground of religious beliefs. He claimed that both the requirement to wear a mask and to submit rapid testing results were discriminatory.
The same day, the union grieved the rapid testing requirement. The city and the union reached a settlement agreement in June 2022 in which the grievance was withdrawn and the city agreed to pay 75 per cent of testing costs for all eligible employees, including the worker, who was reimbursed 75 per cent of what he had spent on tests.
Policy based on public health information
The Director of the Alberta Human Rights Commission acknowledged that employers had a duty to accommodate employees’ religious beliefs to the point of undue hardship. It also noted that the commission and human rights tribunals had upheld workplace vaccination policies that relied on public health and epidemiological information that was available at the time they were made.
The director found that the city’s policy was based on public health information aimed at preventing the spread of the virus and it didn’t require vaccination as there was another option – wearing a mask and getting tested. In addition, the city accommodated the worker with temporary remote work.
The director also found that the worker agreed to return to work by wearing an approved mask. As for the rapid testing, the matter was settled with the settlement agreement in June 2022, the director said in dismissing the complaint.
The worker filed a request for review of the decision with the Alberta Human Rights Tribunal, arguing that the director relied too much on previous decisions about pandemic restrictions and that he agreed to wear a mask at work under duress because he needed to support his family. He also said that having to attest to his religious belief under oath was discriminatory.
Attestation part of exemption process
The tribunal agreed that there was no dispute that the city’s policy followed available public health information with regards to preventing the spread of COVID-19. It also found that asking the worker to attest to his faith before a commissioner for oaths was “a procedural step in the process of requesting an exemption from the policy requirements.” Anyone claiming such an exemption was required to swear that they were part of the protected group, but the worker did not. In addition, the worker didn’t provide any information supporting his claim that the Fellowship of the Wolf required its followers to refuse vaccinations, said the tribunal.
Despite the worker’s refusal to support his exemption request, the city still accommodated him with remote work for a period of time and then reached an agreement with him in which he would wear a mask, the tribunal said.
The tribunal also found that the circumstances of the COVID-19 pandemic and the public health measures put in place made the mask and testing requirements reasonable given the competing concerns. Previous decisions had found that such policies that were put in place to limit the spread of disease and to allow someone to not follow them would be undue hardship given the risk to health and safety, said the tribunal.
“Even if I were to accept that there is a religious requirement not to wear an approved facial mask, which is not suggested in the information before me, the obligation to wear an approved mask at work during a worldwide pandemic reflected a common-sense measure taken by the employer,” said the tribunal.
The tribunal also agreed with the director that this issue of rapid testing had been settled by the city and the union, meaning that the testing aspect of the worker’s complaint had been dealt with in another forum.
The tribunal upheld the dismissal of the worker’s complaint as having no reasonable prospect of success. See Schifer v. City of Edmonton, 2024 AHRC 1.
