Two rulings this month on Covid 19 vaccination mandates in the workplace restore faith in the legal system. Mandatory vaccination policies implemented during Covid have had many negative impacts and created potentially dangerous precedents. Many people have applied for exemptions due to protected grounds under Human Rights legislation and been denied. These two rulings are a step in the right direction by reaffirming the right to not face discrimination based on creed.

Public Health Sudbury & Districts and Ontario Nurses’ Association

On June 7th, 2022, an Ontario Arbitrator ruled in the case of Public Health Sudbury & Districts and Ontario Nurses’ Association where the Grievor applied for an exemption based on creed. The Grievor is a practicing Latin Mass Roman Catholic and the use of fetal cell lines in the production of the vaccines goes against her religious beliefs. Her request was denied, and she was placed on unpaid leave and subsequently terminated. The employer claimed the Grievor was denied her exemption request as they viewed her belief to be a singular belief and claimed it did not amount to Creed within the meaning of the Code.

There is a three-part assessment in determining whether someone qualifies to be exempted through creed: whether creed is a characteristic protected under the Code, whether following her belief would have an adverse impact upon the Grievor’s employment, and whether there is sufficient nexus or relation between the first two factors.

Arbitrator Robert J. Herman ruled that since the Grievor holds a sincere belief, with sufficient nexus to her creed, that to receive a Covid 19 vaccine would interfere with her faith. The Grievor was entitled to an exemption based on the grounds of creed and was prima facie discriminated against when the employer denied her claim.

Nova Scotia Nurses Union and IWK Health Centre

On June 8th, 2022, a Nova Scotia Arbitrator made a ruling in the case Nova Scotia Nurses Union and IWK Health Centre. In this case, the Grievor filed a Human Rights Invocation form on November 12th, 2021, asking for an accommodation on the basis of religion. The Grievor has strong and deeply held Protestant Christian beliefs. The Grievor’s belief is that biblical prophecies have been coming true and that forcing people to take the Covid 19 vaccine is part of an evil plan that she calls the Mark of the Beast. Her request was denied, and she was placed on unpaid leave. The employer claimed the reason they denied her request for accommodation was they viewed this belief as a personal belief and did not see a nexus to religion.

The Unions’ position was that denial of her request for accommodation violated section 5 (1) (d) (k) of the Nova Scotia Human Rights Act, which prohibits employment related discrimination on the basis of religion. Similar to the Sudbury case, it had to be determined whether the Grievor’s objection to the vaccine had a nexus to religion and was a sincerely held belief.

Arbitrator Karen R. Hollett ruled that the Grievor’s beliefs about why she can’t get the vaccine are sincerely held and arise from her understanding of her obligations as a Christian. The policy was found to constitute an intrusion on those religious beliefs and infringe on her freedom of religion.

Both rulings show how these intrusive mandatory vaccination policies can create human rights violations and show that Covid 19 related rules and restrictions cannot trump somebody’s human rights. If you have any questions or concerns regarding these recent decisions and their impact on your membership, please do not hesitate to reach out.

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