'Strongly held personal opinion' about vaccines and testing not rooted in religion: tribunal
The Alberta Human Rights Tribunal has upheld the dismissal of a worker’s human rights complaint alleging religious discrimination related to a mandatory COVID-19 vaccination policy.
The worker was a legal assistant for the Alberta Public Service Commission (APSC). In September 2021, with the COVID-19 pandemic raging and vaccinations available to the general public, APSC introduced a mandatory vaccination policy for its workplace. The policy required employees to be fully vaccinated by Dec. 14. Employees who weren’t able or didn’t want to get vaccinated could provide a negative COVID-19 test result taken within 72 hours before the start of each shift.
Employees would have to pay for their own tests, unless they could demonstrate that they were unable to comply with the policy on the basis of health, religion, or other grounds protected under the Alberta Human Rights Act. If that was the case, APSC would pay for the testing or look for other possible accommodations.
The worker submitted a request for accommodation on the basis of a religious exemption. She said that she viewed her body as God’s temple and didn’t want to inject “toxic substances” into her body. In her request, she provided quotes from Christian scripture – although none referred to vaccination – and a statement from the Baptist Church supporting individual choice and conscience. She also referred to concerns about fetal cells being used in the development of the vaccines.
Insufficient link between vaccination refusal and religious belief
APSC denied the worker’s request, finding that she didn’t provide a sufficient link between her religion and her choice not to get vaccinated. It told the worker that she could undertake COVID-19 testing on her own and provide the negative results so she could continue working in the workplace. If the worker didn’t want to do that , than APSC would place her on unpaid leave until either became vaccinated, provided negative test results, or the public health circumstances changed.
The worker refused to submit to testing between each shift, arguing that she believed that testing was ineffective and too expensive. On Jan. 10, 2022, APSC place her on an unpaid leave.
On March 1, APSC ended the mandatory vaccination policy due to changes in government mandates and public health standards. The workier filed a human rights complaint three weeks later, alleging that APSC discriminated against her on the grounds of religious beliefs. She returned to work on April 4.
The worker also filed two grievances through her union, with one addressing APSC’s failure to accommodate her religious belief and another over the decision to place her on an unpaid leave.
Human rights complaint dismissed
The Director of the Alberta Human Rights Commission initially dismissed the worker’s complaint, finding there was no reasonable prospect of success. The Director concluded that the worker’s personal beliefs about vaccination were sincere, but the information she provided didn’t show that such beliefs constituted a tenet of her religious faith or a fundamental part of its expression. In addition, the reasons the worker chose not to comply with the accommodation offered by PASC – frequent testing was expensive and ineffective – weren’t matters of religious belief, said the Director.
The worker requested a review of the Director’s decision, but she didn’t provide new evidence and reiterated her belief that she had been discriminated against.
The tribunal conducted a fresh assessment of the case and upheld the dismissal of the worker’s complaint, noting that the worker had not established a sufficient objective basis to demonstrate that her opposition to vaccination was tied to a religious tenet. Citing a similar case, Smart v. University of Lethbridge, the tribunal explained that a complainant must do more than assert personal beliefs and must show a clear link to a religious faith. In this case, the worker provided “clear information demonstrating her strongly held personal opinion and desired choice to avoid vaccination, but she has not demonstrated that her decision to refuse COVID vaccination has an objective foundation that links it to a tenet of a religious faith or that it is a fundamental or important part of expressing that faith,” said the tribunal.
The tribunal also found that even if a prima facie case of discrimination had been established, APSC had met its duty to accommodate. The alternative option of COVID-19 testing was deemed a reasonable accommodation and the worker simply refused to participate in the accommodation process, the tribunal said.
Grievance process
Additionally, the tribunal noted that the worker’s concerns were being addressed through ongoing grievance arbitration under her collective agreement, making it unnecessary to pursue the matter concurrently through the human rights process. It emphasized the importance of avoiding duplicative proceedings and noted that it doesn’t have jurisdiction to address claims involving alleged violations of a collective agreement.
The tribunal determined that the worker’s complaint had no reasonable prospect of success and upheld the Director’s decision to dismiss it. See Delia v. His Majesty the King in Right of Alberta (Alberta Public Services Commission), 2024 AHRC 133.
