An arbitrator has dismissed a grievance filed by the Canadian Union of Public Employees, Local 1146, on behalf of a former Oxford County employee in Ontario who was terminated for refusing to comply with the county’s COVID-19 Workplace Vaccination Policy.
The union argued that the termination constituted discrimination based on creed under the Ontario Human Rights Code, but Arbitrator Brian Sheehan found that a prima facie case of discrimination had not been established.
Background of the case
J.R. began her employment with Oxford County on Jan. 4, 2011, and worked as a caseworker primarily interacting with claimants under the Ontario Works Program. On Sept. 16, 2021, the employer introduced a COVID-19 vaccination policy requiring employees to provide proof of full vaccination or submit to regular COVID-19 testing. The policy stated that failure to comply could lead to discipline, up to and including termination.
On Sept. 20, 2021, J.R. submitted a 30-page information package to the employer, expressing her objections to the policy. The package included a “Notice of Liability” and multiple “Notice to Produce” documents, demanding evidence regarding the efficacy and safety of COVID-19 vaccines and testing.
She stated, “I am not accepting or declining your offer of injection at this time. I am giving you an opportunity to provide informed consent as required by law.”
Religious exemption request
Initially, J.R.’s objections focused on legal and safety concerns rather than religious beliefs. However, on Oct. 29, 2021, she submitted a revised information package, including a “Request for Accommodation” and a “Spiritual Declaration.” In her declaration, she stated: “As a living woman, I retain all of my God-given inalienable rights, including sole possession and sole use of all my biological materials which are granted to me by my Creator.”
She argued that participating in COVID-19 testing could alter her DNA, conflicting with her belief that she must preserve what God created. Additionally, she referenced biblical scriptures warning against taking the “Mark of the Beast,” associating mandatory testing with a potential evil “new world order.”
Employer’s response and termination
The employer, through Director of Human Resources Amy Smith, communicated that the testing swabs used did not contain chemicals that could alter DNA. Despite this, J.R. continued to refuse testing. She was placed on unpaid leave on Oct. 4, 2021, and subsequently received written warnings and suspensions for non-compliance.
On Jan. 24, 2022, J.R.’s employment was terminated for failing to comply with the testing requirements. The union filed a grievance, arguing that the employer failed to accommodate her religious beliefs and that the policy was unreasonable in imposing termination as a penalty.
Arbitrator’s decision
The hearing was bifurcated to first address whether a prima facie case of discrimination based on creed existed. Arbitrator Sheehan concluded that the union did not establish that the employer’s actions violated the Ontario Human Rights Code.
While acknowledging J.R.’s sincere Christian faith, the arbitrator found insufficient evidence of a nexus between her religious beliefs and her refusal to undergo testing. “The Grievor’s efforts to establish the necessary nexus between her religious beliefs and the requirement to undergo COVID-19 testing were strained and unconvincing,” he wrote.
He noted that J.R.’s initial objections were rooted in secular concerns, such as legal authority and safety issues related to vaccines and testing. The arbitrator pointed out that in her extensive submissions challenging the policy, “there was only a single line claiming that she had been discriminated against on account of her religious beliefs.”
Furthermore, J.R. had indicated a willingness to undergo testing if her concerns were addressed, stating: “Once I have received and reviewed the above information in full and I am satisfied that there is no threat to my health or current quality of life, I will be happy to accept your offer to receive the testing.”
Next steps
The matter has been referred back to the parties to address the next steps regarding the adjudication of the grievance. The union may choose to proceed with its alternative argument challenging the reasonableness of the policy in imposing termination as a penalty for non-compliance.
Key takeaways
Sincerity vs. nexus: While an employee’s religious beliefs may be sincere, there must be a direct connection between those beliefs and the refusal to comply with a workplace policy.
Employer’s duty: Employers must assess accommodation requests individually but are not obligated to accommodate personal choices unrelated to protected grounds under human rights legislation.
Policy enforcement: The decision supports employers’ ability to enforce COVID-19 vaccination and testing policies when they do not infringe upon employees’ protected rights.
For more information, see Oxford (County) v Canadian Union of Public Employees, Local 1146, 2024 CanLII 105213 (ON LA).
