Arbitrator Allows Religious-Based Exemption From Covid-19 Mandatory Vaccination Policy

• Published date: 25 April 2023
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Arbitration & Dispute Resolution, Human Rights, Government Measures, Employment and Workforce Wellbeing
• Law Firm: Roper Greyell LLP ' Employment and Labour Lawyers
• Author: Ms Gabrielle Berron-Styan

In the recent case of B.C. Rapid Transit Co. v. Canadian Union of Public Employees, Local 7000 (Morzhakov Grievance), [2022] B.C.C.A.A.A. No. 114 (Noonan), Arbitrator Randall Noonan held that an employer violated an employee's rights under the B.C. Human Rights Code when it refused to grant a religious accommodation in relation to its COVID-19 mandatory vaccination policy.

Facts

The employer implemented its COVID-19 Safety Vaccination Policy requiring all employees to be fully vaccinated by December 20, 2021, unless they received an accommodation on the basis of a ground protected under the Human Rights Code.

The grievor was employed as an Asset Integration Monitor. He was brought up in the Ukrainian Orthodox Church and taught that his body was sacred so he should not smoke or drink or alter his body. He had never received an injection.

In response to the vaccination policy, the grievor sought an exemption from being vaccinated based on his religious belief.

In order to determine whether the grievor had a sincerely and honestly held religious belief in respect of vaccination, the employer asked him to provide information about the following:

• his religious belief;
• how his religious belief led him to object to vaccinations generally, including the COVID-19 vaccination;
• how his belief was connected to his faith; and
• how or why his faith required this belief.

The grievor told the employer he believed that people "are created in the image of God", God wants people to use prayer to heal the body, and he was therefore opposed to all vaccinations. He cited, among other things, a biblical passage to support his belief and indicated his views "correlated" with those of his church.

The employer sought further information from the grievor, including whether in addition to vaccines, he also objected on the basis of his religious belief to all other medication or medical treatment. The grievor responded that he only participated in alternative medical treatment and provided a note from his physician confirming this.

After a number of exchanges, the grievor eventually disclosed that his physician had prescribed pharmacological medication to him in the past. He stated he had reluctantly taken that medication after being in a severe car crash in 2018.

The employer denied the grievor's exemption request on the basis that his religious belief did not appear to have prevented him from receiving conventional medication in the past.

Decision

Arbitrator Noonan allowed the...