Accommodating Religion In The Workplace: Legal Considerations When Establishing And Enforcing COVID-19 Vaccination Policies

• Published date: 01 April 2022
• Subject Matter: Employment and HR, Government, Public Sector, Coronavirus (COVID-19), Discrimination, Disability & Sexual Harassment, Health & Safety, Human Rights, Employment and Workforce Wellbeing
• Law Firm: MacDonald & Associates
• Author: Mr Faraz Kourangi

Originally published on the 19th October 2021

The COVID-19 pandemic has required Canadian employers to take steps to protect the health and safety of the workforce as a whole, while upholding the human rights of individual employees. Many employers have sought to fulfill these conflicting obligations by implementing mandatory vaccination policies with exemptions for medical or religious reasons. However, it remains unclear in what circumstances, and to what extent, employees are entitled to religious accommodation during a global health crisis. In fact, the Ontario Human Rights Commission recently issued a policy statement stating, "Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements. The duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship - such as during a pandemic."¹

In light of the approximate 1.7 million Canadians who have contracted COVID-19, of which over 28,000 have died,² it is not surprising that most businesses and organizations have taken the position that the health and safety of the group should be prioritized over individual religious freedoms. However, as we await courts and tribunals to weigh in on this issue, employers should tread lightly when considering religion-based vaccination exemption requests. An employer's failure to fulfill the procedural requirements of the duty to accommodate-taking an individualized and contextual approach, in good faith, to determine possible accommodation solutions-may amount to discrimination (as well as constructive dismissal), even where no substantive accommodation could have been provided short of undue hardship.

This article provides an overview of the duty to accommodate religion in Canadian workplaces (with a particular emphasis on Ontario's human rights regime), and offers best practices for employers to fulfill this duty in the context of mandatory COVID-19 vaccination policies in order to minimize their risk of liability under the Ontario Human Rights Code (the "Code").³

Legislative Landscape - The Canadian Charter and Provincial/Territorial Human Rights Statutes

All human rights legislation must follow the Canadian Charter of Rights and Freedoms (the "Charter").⁴ Section 15(1) of the Charter states: "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."⁵ Section 2(a) of the Charter provides that everyone has "freedom of conscience and religion", which is a "fundamental" freedom.⁶ The Charter guarantees the rights and freedoms set out in it...