In order to mitigate the spread of COVID-19 in the workplace, many employers are implementing vaccination requirements for employees. Immunization policies are employer specific and vary widely based on their particular requirements. In each case, the policy must carefully balance occupational health and safety requirements to mitigate the spread of COVID-19 in the workplace, employee privacy rights, and considerations under the law. applicable in matters of human rights. From a human rights perspective, this includes considering accommodations for people who cannot be vaccinated due to protected grounds of discrimination, such as religious beliefs. In Alberta, section 7 of the Alberta Human Rights Act (RSA 2000, c A-25.5) (the Act), prohibits employers from discriminating against individuals on the basis of religious beliefs. Similar human rights legislation exists in every province and territory of Canada, including Ontario under section 5 of the Human Rights Code (Ontario) (RSO 1990, c H.19).
Employers across the country are seeing a wide variety of requests for religious exemptions, including requests citing religious texts; requests accompanied by letters of support from religious leaders; and archival letters downloaded from the Internet. The question of how to reasonably respond to these requests is a difficult problem. In this update, we provide practical advice on handling requests for religious exemptions from employers’ immunization policies, building on a recent decision by the Alberta Human Rights Commission regarding a mandate to grocery mask.
The legal test
The main decision on the parameters of religious freedom is the decision of the Supreme Court of Canada in Northcrest Union v Amselem [Amselem]. To claim protection against discrimination based on religious freedom, the complainant must demonstrate:
- they have a practice or a belief, having a link with the religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by generating, in a general way, subjectively a personal bond with the divine or with the subject or the object of the spiritual faith of an individual, independently of the fact that a practice or a particular belief is required by official religious dogma or conforms to the position of religious leaders; and
- they are sincere in their belief (paragraph 56).
Since only sincere religious beliefs are protected, the legal test requires the court or tribunal to ensure that “the asserted religious belief is in good faith, not fictitious or capricious, and is not an artifice.” . A recent decision by the Alberta Human Rights Commission in Pelletier v Community Natural Foods [Community Natural Foods] provides additional guidance on what is necessary to ground a complaint of discrimination based on religious beliefs in the context of the pandemic. While this ruling relates to mask warrants and not vaccine requirements, the Tribunal Chief’s comments are informative and may have some application to the issue of vaccine requirements in general.
In response to the pandemic, Community natural foods implemented a face mask policy. The policy did not include exceptions for people who could not wear a mask for religious or medical reasons, but did offer online shopping, door-to-door delivery, curbside pickup, or a personal buyer for these. affected customers. In January 2021, Mr. Pelletier went to the grocery store, challenged the face mask policy, and subsequently filed a human rights complaint alleging that the policy discriminated against him because of ‘a physical disability and religious beliefs. Mr. Pelletier alleged, among other things:
- “God created me in his image and if he cannot see this image because it is covered with a face mask, then I have committed sacrilege.”
- “My faith teaches me that no matter how well intentioned the government health arrangements are, they can conflict with my personal conscientious beliefs and when they do, I must choose the latter. [sic]. This is the present case.
The Commission dismissed the complaint, ruling:
- Although the case law does not limit the protection of religious freedom to adherents of dominant religious denominations (see Amselem), the complainant did not identify the religion or religious tradition he followed, nor explained how the requirement to cover his face restricted his ability to practice his religious faith. He simply asserted that covering one’s face was sacrilege and pointed to verses from the Bible, unrelated to a principle or practice of covering one’s face.
- The Director of the Commission said that in order to claim protection based on religious belief, a complainant must do more than simply “identify a particular belief, claim it is sincere, and claim it is religious in nature. Instead, the complainant must provide “an objective basis sufficient to establish that belief is a principle of a religious faith (whether or not it is widely adopted by others of the faith), and that it is a fundamental or important part of the expression of this faith.“
The Alberta Human Rights Commission states that allegations of discrimination based on religious beliefs related to vaccination policies must be supported by a sincere religious belief and related to a person’s faith. Personal preferences and personal opinions are not grounds protected by the Act. Likewise, the Ontario Human Rights Commission recently released a policy statement on COVID-19 vaccination mandates, similarly stating that “a person who chooses not to be vaccinated because of his personal preferences is not entitled to be accommodated under the Coded“And that” the singular beliefs do not constitute a belief for the purposes of Coded. “
Disbelief in the efficacy of the vaccine or simply referring to unrelated religious texts and extrapolating an interpretation that excludes vaccination will be insufficient to justify religious exemptions. Likewise, the individual must be more than incidentally or slightly affected by the restriction or requirement in order to substantiate a human rights complaint. Instead, those seeking exemptions based on religious freedom must demonstrate that the vaccination policy unduly interferes with a fundamentally important aspect of sincere religious belief or practice.
Employers should carefully consider requests for religious exemptions from mandatory vaccination programs. This is a very factual assessment and should include a careful consideration of the individual applicant’s alleged religious objection to the vaccine. Part of this assessment can include a requirement for employees to complete a religious exemption form to verify the legitimacy of the request. In addition, it may be appropriate for the employer to request documents to support the belief, including a statement from a religious leader and / or excerpts from a religious text.
Note that while a person may establish a religious or medical reason for not receiving a COVID-19 vaccine, whether the employer or service provider can reasonably adjust to the point of undue hardship is one. separate legal issue and requires additional fact-specific analysis. The duty to accommodate is limited when an accommodation significantly compromises health and safety.