Written By Stephanie Henry, John Gilmore and David Cassin
In an effort to mitigate the spread of COVID-19 in the workplace, many employers are implementing vaccination requirements for employees. Vaccination policies are employer specific and vary widely in terms of 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 applicable human rights legislation. From a human rights perspective, this includes considering accommodations for individuals 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), precludes employers from discriminating against individuals on the basis of religious beliefs. Similar human rights legislation exists in each Canadian province and territory, including in 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 religious exemption requests, including requests citing to religious texts; requests accompanied by supporting letters from religious leaders; and stock letters downloaded from the internet. The question of how to respond reasonably to these requests poses a difficult problem. In this update, we provide some practical guidance on addressing requests for religious exemptions to employer vaccination policies, drawing on a recent decision from the Alberta Human Rights Commission regarding a grocery store mask mandate.
The Legal Test
The leading decision on the parameters of religious freedom is the Supreme Court of Canada's decision in Syndicat Northcrest v Amselem [Amselem]. In order to claim protection against discrimination based on a religious freedom, the complainant must show:
- they have a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual's spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and
- they are sincere in their belief (para 56).
Because only sincerely held religious beliefs are protected, the legal test requires the court or tribunal to ensure that the "asserted religious belief is in good faith, neither fictitious nor capricious and that it is not an artifice." A recent decision from the Alberta Human Rights Commission in Pelletier v Community Natural Foods [Community Natural Foods] provides further guidance on what is required to ground a claim for discrimination based on religious beliefs in the context of the pandemic. While this decision pertains to mask mandates and not vaccine requirements, the Chief of the Tribunal's comments are instructive and may have some application to the issue of vaccine requirements generally.
In response to the pandemic, Community Natural Foods implemented a facemask policy. The policy did not include exceptions for individuals who were unable to wear a mask for religious or medical reasons, but offered online shopping, home delivery, curbside pickup or a personal shopper for these affected customers. In January of 2021, Mr. Pelletier attended at the grocery store, took issue with the facemask policy and subsequently filed a human rights complaint alleging that the policy discriminated against him based on physical disability and religious beliefs. Mr. Pelletier alleged, among other things:
- "God created me in his own image and if he cannot see that image because it is covered with a face mask then I have committed sacrilege."
- "My faith instructs me that however well-meaning government health provisions are, they may conflict with my personal conscientious convictions and when they do, I am to choose the later [sic]. This is the present case.
The Commission dismissed the complaint, holding:
- Although the case law does not limit protection of religious freedom to adherents of mainstream religious faiths (see Amselem), the complainant did not identify which religion or faith tradition he followed, nor explain how the requirement to cover his face restricted his ability to practice his religious faith. He simply asserted that covering his face was a sacrilege and pointed to bible verses, unrelated to a tenet or practice of covering one's face.
- The Director of the Commission stated that, in order to assert protection based on a religious belief, a complainant must do more than simply "identify a particular belief, claim that it is sincerely held, and claim that it is religious in nature." Instead, the complainant must provide "a sufficient objective basis to establish that the belief is a tenet 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 expressing that faith."
The Alberta Human Rights Commission states that claims of discrimination based on religious beliefs related to vaccination policies must be supported by a sincerely held religious belief that is connected to a person's faith. Personal preferences and personal opinions are not protected grounds under the Act. Likewise, the Ontario Human Rights Commission recently released a policy statement on COVID-19 vaccine mandates, similarly stating that “a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code” and that “singular beliefs do not amount to a creed for the purposes of the Code.”
Disbelief in the efficacy of the vaccine or simply pointing to unrelated religious texts and extrapolating an interpretation that precludes vaccination will be insufficient to ground religious exemptions. Similarly, the individual must be more than incidentally or lightly affected by the restriction or requirement in order to ground a human rights complaint. Instead, those who seek exemptions based on a religious freedom must show that the vaccination policy unduly interferes with a fundamentally important aspect of a sincerely held religious belief or practice.
Employers must carefully evaluate requests for religious exemptions to mandatory vaccination programs. This is a highly fact-specific assessment and must include a careful consideration of the individual claimant's alleged religious objection to the vaccine. Part of this assessment may include a requirement for employees to complete a religious exemption form to ascertain the legitimacy of the claim. In addition, it may be appropriate for the employer to request documentation to support the belief, including a statement from a religious leader and/or excerpts from a religious text.
Note that even if a person can establish a religious or medical reason for not receiving a COVID-19 vaccine, whether the employer or service provider can reasonably accommodate to the point of undue hardship is a separate legal question and requires a further fact specific analysis. The duty to accommodate is limited where an accommodation will significantly compromise health and safety.