Back

The Code of Conduct in BC - The First Amendment

October 6, 2021

British Columbia

,

Canada

Issue

When will a religious exemption to a mandatory vaccine policy be recognized under the Human Rights Code?

Conclusion

The legal burden is on the complainant to prove, on a balance of probabilities, that the respondents discriminated against her based on religion, contrary to s. 13 of the Human Rights Code ("the Code"). In order to establish a prima facie case of discrimination, in the circumstances of this complaint, the complainant must establish that: i) she sincerely believes in a practice or belief that has a nexus with religion; ii) she suffered adverse treatment in her employment; and, iii) it is reasonable to infer from the evidence that her religious belief or practice was a factor in the adverse treatment. A prima facie case is one “which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent employer”. If the complainant establishes a prima facie case, then, in the circumstances of this complaint, the evidentiary burden shifts to the respondents to justify their conduct on the basis that it would have constituted undue hardship to accommodate the complainant's religion. It is not necessary that the prohibited ground of discrimination be the sole or even a primary factor in the adverse treatment in order to constitute a breach of the Code. It is sufficient if it is only one factor in the adverse treatment. (Balak v. First Choice Haircutters and others)

No authority was located that considered what qualifies as a religious exemption under the Code in the context of a mandatory vaccine policy. However, decisions that discuss mandatory vaccine policies or similar issues may provide guidance.

In Complainant obo Class of Persons v. John Horgan, the complainant filed a complaint with the BC Human Rights Tribunal ("the Tribunal") on behalf of herself and people who were "opposed to being forced into getting the COVID-19 Vaccination" and getting their "basic human rights and freedoms stripped" from them. The complaint related to the Government of British Columbia's announcement on August 23, 2021 that individuals would be required to provide proof of vaccination to access a broad range of social, recreational, and discretionary events and businesses throughout the province. The complaint alleged that the Government's conduct discriminated based on the ground of political belief contrary to s. 13 of the Code, likely because political belief is only a ground of discrimination in relation to employment, employment advertisements, and membership in employment-related organizations such as unions. The Tribunal accepted that a genuinely held belief opposing government rules regarding vaccination could be a political belief within the meaning of the Code. However, protection from discrimination based on political belief did not exempt a person from following provincial health orders or rules. It protects a person from adverse impacts in their employment based on their beliefs. The complainant alleged no facts relating to any adverse impact in employment. The complainant did not identify how the August 23, 2021 announcement by the Government had affected her, or anyone else who objected to it, in their employment. Without allegations of an actual adverse impact experienced by the proposed class in their employment, the complaint could not be established to breach the Code. Accordingly, the complaint was dismissed.

Simcoe Paramedic Services v. Ontario Public Service Employees Union, Local 303 concerned the discharge of a person for his failure to provide timely proof of immunization. The grievor was a paramedic and was required to maintain up-to-date immunizations, including tetanus, which protection was statutorily mandated. The collective agreement made immunization and proof thereof a condition of employment. The grievor was not in favour of vaccinations for reasons of "conscience". His wife signed an affidavit of Conscience of Religious Belief. No evidence as to spiritual belief was provided. Eventually, the grievor did get did tetanus shot. Ultimately, the arbitrator held that it was a case involving a statutory obligation to maintain immunity because of the risks posed to the public and co-workers. The arbitrator held that the employer had just cause for discharge and there were insufficient mitigating factors to warrant the substitution of a lesser penalty.

In Trillium Ridge Retirement Home v. S.E.I.U., Local 183, Local 183, Arbitrator Emrich dealt with a group grievance. The employer operated a nursing and retirement home in the City of Kingston. The employer introduced a mandatory policy requiring staff to be vaccinated and/or to take antiviral medication, or to miss shifts of work until immunity was acquired. The Arbitrator held that the policy was reasonable in the circumstances, but that where the employee may be able to accept either the vaccine or antiviral medication for medical or religious reasons different considerations may prevail and a different balance may be struck between the competing interests of the parties.

In Gordon v. Hotel, Restaurant & Culinary Employees & Bartenders Union, Local 40, a worker applied under the BC Labour Relations Court alleging that the union breached the duty of fair representation when it withdrew his grievance seeking an exemption from the employer's mandatory Hepatitis A vaccination program. The worker was a waiter in the employer's restaurant. Provision was made for legitimate religious and medical exemptions. The worker claimed he had a religious exemption. The Arbitrator did not consider the exemption because the worker did not reach the issues with the union before it reached its decision to withdraw his grievance. The arbitrator found the union acted reasonably in its agreement to the inoculation program and in its treatment of the grievance.

In Health Employers Assn. of British Columbia and HSA BC (Influenza Control Program Policy), Re, an arbitration took place concerning a union's policy grievance challenging the employer's Influenza Control Program Policy ("the Policy"). The Policy mandated that union members obtain the influenza vaccine, or wear a mask during the flu season. The union alleged, in part, that the Policy violated s. 13 of the Human Rights Code, RSBC 1996, c 210 because it made no provision for employees who have medical disabilities that do not permit them to be immunized or for employees who have conscientious objections to immunization. The employer led evidence that a vaccination or mask policy would accommodate religious beliefs. The arbitrator held that by allowing employees to mask instead of vaccinating, the Policy did not require employees to immunize. The masking requirement was found to be a legitimate exercise of the employer's management rights. The fact that the Policy did not facially address accommodation was not in itself a reason to impugn it, because the duty to accommodate is a freestanding duty imposed by law. The union's objections were anticipatory in nature, and were more properly addressed in individual grievances should cases of a failure to accommodate occur. Consequently, the Policy did not violate the Human Rights Code.

In Gill v. BC Ministry of Labour and another, the complainant was an Indo-Canadian Sikh who wore a turban, and was employed as an Occupational Health Officer. He made a complaint against the Ministry of Labour ("the Ministry") and WorkSafe alleging they discriminated against him regarding his employment on the ground of religion contrary to s. 13 of the Code. The complainant asserted that he could not be required to wear a hard hat at work, as it would require him to remove his turban, which he wore out of observance of his religion. Prior to the complaint, the complainant and WorkSafe reached an accommodation plan that allowed him to wear his turban as part of his daily working attire, and when called to work sites, the complainant would follow established criteria to make an assessment as to whether he could accept the call as a first responder. If a hard hat was required, the next available officer would be dispatched. The complaint against the Ministry related to three letters written by the former Minister to members of the Sikh community in response to inquiries or discussions about the requirement to wear hard hats by members of the Sikh community, and the possibility of a legislative exemption for Sikh workers who wear turbans. The complaint also involved an allegation that the Ministry discriminated against the complainant because of its blanket safety policies that were based on "outdated notions and beliefs" about Sikh workers who wear turbans that are not supported by science. The respondents both applied to have the complaint dismissed. The complaint against the Ministry was summarily dismissed pursuant to s. 27(1)(c) of the Code. The Tribunal found that the complainant would not be able to prove his case because he had not experienced any employment-related adverse impacts as a result of its conduct. The Minister's letters did not constitute an employment-related adverse impact. The Tribunal recognized that the complainant disagreed with the Ministry's position on the use of hard hats and he believed health and safety laws, regulations and policies needed to be changed. However, the complainant did not articulate with specificity how the Ministry's conduct negatively affected his employment as an Occupational Health Officer. The complainant's complaint against WorkSafe was not dismissed, as the Tribunal found that there were issues of credibility that required a trial in order to establish if WorkSafe's conduct was justified.

Law

The Human Rights Code, RSBC 1996, c 210 (the "Code") prohibits discrimination in employment on the following grounds:

Discrimination in employment

13 (1) A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

(2) An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1).

(3) Subsection (1) does not apply

(a) as it relates to age, to a bona fide scheme based on seniority, or

(b) as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employer.

(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

In Balak v. First Choice Haircutters and others, 2009 BCHRT 84 (CanLII), the complainant, a life-long practising Pentecostal Christian, alleged that her employer discriminated against her on the ground of her religion by refusing to give her Sundays off to attend church. The Tribunal identified the relevant test as follows:

[78] The legal burden is on Ms. Balak to prove, on a balance of probabilities, that the Respondents discriminated against her based on religion or mental disability, contrary to s. 13 of the Code.

[79] In order to establish a prima facie case of discrimination, in the circumstances of this complaint, the parties are agreed that Ms. Balak must establish that:

i) she sincerely believes in a practice or belief that has a nexus with religion (Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47, para. 65), and that she has a mental disability;

ii) she suffered adverse treatment in her employment; and

iii) it is reasonable to infer from the evidence that either her religious belief or practice (Friesen v. Fisher Bay Food Ltd. and Boon and Johnston, 2009 BCHRT 1), or her disability (Wu v. Ellery Manufacturing Ltd., 2000 BCHRT 53) was a factor in the adverse treatment.

[80] A prima facie case is one “which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent employer”: O’Malley v. Simpson-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, para. 28.

[81] If Ms. Balak establishes a prima facie case, then, in the circumstances of this complaint, the evidentiary burden shifts to the Respondents to justify their conduct on the basis that it would have constituted undue hardship to accommodate Ms. Balak’s religion and mental disability.

[82] It is not necessary that the prohibited ground of discrimination be the sole or even a primary factor in the adverse treatment in order to constitute a breach of the Code: O’Connor v. Town Taxi, 2000 BCHRT 9, para. 55. It is sufficient if it is only one factor in the adverse treatment.

[83] As well, in this case, in determining whether the third element of the test has been met in regard to the allegation of discrimination based on mental disability, it is necessary to assess whether the Respondents knew, or ought to have known, that Ms. Balak suffered from a mental disability: Sylvester v. British Columbia Society of Male Survivors of Sexual Abuse, 2002 BCHRT 14, para. 34-35.

In Complainant obo Class of Persons v. John Horgan, 2021 BCHRT 120 (CanLII), the complainant filed a complaint with the BC Human Rights Tribunal ("the Tribunal") on behalf of herself and people who were "opposed to being forced into getting the COVID-19 Vaccination" and getting their "basic human rights and freedoms stripped" from them. The complaint related to the Government of British Columbia's announcement on August 23, 2021 that individuals would be required to provide proof of vaccination to access a broad range of social, recreational, and discretionary events and businesses throughout the province. The complaint alleged that the Government's conduct discriminated based on the ground of political belief contrary to s. 13 of the Code, likely because political belief is only a ground of discrimination in relation to employment, employment advertisements, and membership in employment-related organizations such as unions. The Tribunal accepted that a genuinely held belief opposing government rules regarding vaccination could be a political belief within the meaning of the Code. However, protection from discrimination based on political belief did not exempt a person from following provincial health orders or rules. It protects a person from adverse impacts in their employment based on their beliefs. The complainant alleged no facts relating to any adverse impact in employment. The complainant did not identify how the August 23, 2021 announcement by the Government had affected her, or anyone else who objected to it, in their employment. Without allegations of an actual adverse impact experienced by the proposed class in their employment, the complaint could not be established to breach the Code. Accordingly, the complaint was dismissed:

[9] The Tribunal reviews complaints upon filing to ensure they allege a possible violation of the Code. To establish discrimination contrary to the Code, a complainant must prove that they have a characteristic protected from discrimination; that they have experienced an adverse impact in a protected area; and that the protected characteristic was a factor in the adverse impact: Moore v. British Columbia, 2012 SCC 61 at para. 33 [Moore].

[10] The Complainant has filed her complaint on the basis of the protected characteristic of political belief in the area of employment. Political belief includes “public discourse on matters of public interest which involves or would require action at a governmental level”: Fraser v. British Columbia (Ministry of Forests, Lands and Natural Resource Operations), 2019 BCHRT 140 at para. 59; Bratzer v. Victoria Police Department, 2016 BCHRT 50 at para. 271 [Bratzer]. As mentioned above, in the present complaint, the Complainant filed not only on her own behalf, but on behalf of a class of “people who are opposed to being forced into getting the COVID-19 vaccination and getting our basic human rights and freedoms stripped from us […].” The Complainant says:

The British Columbia government has made a very aggressive and unjustified move that goes against our basic human right to bodily autonomy and medical freedoms. The government has no right to tell us what goes into our bodies or threatening us into getting this vaccination by taking away our basic rights and freedoms. This is segregation, discrimination, and derogatory, and has no place in modern society.

[11] I accept that a genuinely held belief opposing government rules regarding vaccination could be a political belief within the meaning of the Code. In saying this, however, I stress that protection from discrimination based on political belief does not exempt a person from following provincial health orders or rules. Rather, it protects a person from adverse impacts in their employment based on their beliefs. For example, in Bratzer, the Tribunal found that the employer had discriminated against the complainant because of his advocacy in connection with drug laws. He still had to follow those laws despite his opposition to them, but his opposition to them could not be the basis for adverse treatment in his employment, subject to a bona fide occupational requirement.

[12] Moving to the second requirement, the Complainant alleges no facts related to any adverse impact in employment. As I said above, the Complaint appears to be concerned about the Government’s announcement about pending Services Requirements. While, on August 12, 2021, the Government also announced upcoming requirements regarding health-care workers in care homes, the Complaint does not refer to that announcement. The Complainant does not identify how the August 23, 2021 announcement in relation to the Services Requirements has affected her, or anyone else who objects to it, in their employment. The Code does not permit a direct challenge to a public health order based merely on disagreement with it.

[13] Without allegations of an actual adverse impact experienced by the proposed class in their employment, this Complaint could not establish a breach of the Code. Accordingly, it will not proceed and is dismissed.

In Health Employers Assn. of British Columbia and HSA BC (Influenza Control Program Policy), Re, 2013 CarswellBC 3189, [2013] BCCAAA No 138 (BC Arb), an arbitration took place concerning a union's policy grievance challenging the employer's Influenza Control Program Policy ("the Policy"). The Policy mandated that union members obtain the influenza vaccine, or wear a mask during the flu season. The union alleged, in part, that the Policy violated s. 13 of the Human Rights Code, RSBC 1996, c 210 because it made no provision for employees who have medical disabilities that do not permit them to be immunized or for employees who have conscientious objections to immunization. The employer led evidence that a vaccination or mask policy would accommodate religious beliefs. The arbitrator held that by allowing employees to mask instead of vaccinating, the Policy did not require employees to immunize. The masking requirement was found to be a legitimate exercise of the employer's management rights. The fact that the Policy did not facially address accommodation was not in itself a reason to impugn it, because the duty to accommodate is a freestanding duty imposed by law. The union's objections were anticipatory in nature, and were more properly addressed in individual grievances should cases of a failure to accommodate occur. Consequently, the Policy did not violate the Human Rights Code:

88 Van Byunder testified that the basis of most United States east coast policies is mandatory vaccination or exclusion, absent contra-indications or religious objections. Vaccination rates under these policies, he said, exceed 99%. He noted that prior to the United States tour his group had recommended such a mandatory policy to the Leadership Council. However, the group changed its position after learning United States vaccination rates that were achieved under vaccination or mask policies. He testified that across the board, from small facilities to large, from unionized environments to non-unionized, a vaccination rate of 95% was obtained. Accordingly, his group moved to a recommendation of a vaccination or mask policy. Van Byunder also said that a vaccination or mask policy has a special utility in FH because some of its health care workers hold religious beliefs that object to vaccination. Describing these persons as valued employees, he said a vaccination or mask policy would accommodate their religious beliefs.

[...]

238 The Union asserted that the Policy is discriminatory and violates s.13(1) because it makes no provision for employees who have medical disabilities that do not permit them to be immunized or for employees who have conscientious objections to immunization. With respect to medical disabilities, in argument the Union referenced Hodges, submitting she is disabled because of a previous anaphylactic reaction to influenza vaccination. The Union also raised the case of employees with needle phobias. The Policy, submitted the Union, is discriminatory because it sets out no exceptions for employees medically disabled or having conscientious objections to immunization. Further, it requested me to disregard the evidence of Van Byunder and Daly respecting accommodation, on the grounds that it is self-serving and not proven.

239 As to immunization, I have previously observed that the Policy does not require employees to immunize. They have a choice to immunize or mask. As to masking, I have addressed most of these objections in the KVP analysis. As I observed there, the fact the Policy does not facially address accommodation is not in itself a reason to impugn it because the duty to accommodate is a freestanding duty imposed by law. As to rejecting the evidence of Daly and Van Byunder on the bases that it is self-serving and unproven, my conclusions are these. First, while their evidence was of course given to advance the Employer's case, I do not consider it self-serving in the technical sense of that term. Further their demeanor, direct examination and cross-examination gave me no reason to doubt their credibility or sincerity on these issues. Aside from the foregoing, the Union's objections are anticipatory in nature. In my view their concerns are more properly addressed in individual grievances should cases of a failure to accommodate occur. For the foregoing reasons, therefore, I conclude that the Policy does not violate the Human Rights Code.

Simcoe Paramedic Services v. Ontario Public Service Employees Union, Local 303, 2008 CanLII 66623 (ON LA) concerned the discharge of a person for his failure to provide timely proof of immunization. The grievor was a paramedic and was required to maintain up-to-date immunizations, including tetanus, which protection was statutorily mandated. The collective agreement made immunization and proof thereof a condition of employment. The grievor was not in favour of vaccinations for reasons of "conscience". His wife signed an affidavit of Conscience of Religious Belief. No evidence as to spiritual belief was provided. Eventually, the grievor did get did tetanus shot. Ultimately, the arbitrator held that it was a case involving a statutory obligation to maintain immunity because of the risks posed to the public and co-workers. The arbitrator held that the employer had just cause for discharge and there were insufficient mitigating factors to warrant the substitution of a lesser penalty:

This is a discharge case. The Grievor is a paramedic who was employed on a part-time basis. The stated grounds for discharge were his failure to provide timely proof of immunization, his absence from work for more than three scheduled shifts because of his lack of immunization and his failure to provide the Service with his availability for scheduling as required under the Collective Agreement. The Union asserted that the Employer failed to establish any grounds for discipline or, in the alternative, that discharge was excessive in all the circumstances.

The factual background to this case revolves around the requirement for paramedics to maintain up-to-date immunizations, which include Tetanus, and for part-time employees to submit their shift availability to the Service. Tetanus protection is statutorily mandated. Much of this case also turns on the operation of the Collective Agreement. The relevant provisions are:

4.02 Part-time Employee (PTE)

A “Part-time Employee” is an employee who is hired to fill a part-time position for an indefinite time and is scheduled in advance as required. Part-time employees will not normally be scheduled for more than sixty (60) hours in any pay period. However, when operationally required or in times of peak demand, the Employer may schedule Part-time employees for up to eighty-four (84) hours in any pay period. It is understood that Part-time employees shall provide the Employer with their availability ninety (90) days in advance, for a minimum of six (6) non-consecutive shifts per month. Employees shall accept shifts as scheduled to remain on the roster, in accordance with the scheduling policy that may be amended from time to tie, provided the Local Union is given reasonable prior notice of the amendment taking effect.

12.04 Seniority shall terminate and an employee shall cease to be employed by the Employer when that employee:

. . . . .

(e) Is absent from work for more than three (3) consecutive scheduled working days without leave, as provided for in the collective agreement or failing a reason acceptable to the Employer;

ARTICLE 27 - CONDITIONS OF EMPLOYMENT

27.01 It is each employee’s responsibility pursuant to the Ambulance Act and Regulations to ensure that their qualifications are kept current and valid, including immunization certificates or medical proof of contraindication.

27.02 Copies of all renewals as referenced above must be submitted prior to individual expiry dates. Failure to provide proof in a timely manner may result in temporary or permanent layoff without pay.

The Grievor’s Tetanus protection was due to expire on July 10, 2007. On June 4, 2007, the Service sent the Grievor a reminder of his need to renew this protection via internal email (Webmail) advising that his failure to provide updated information could affect his eligibility to work. He was sent a second reminder on July 5th, advising that he must deliver proof of an updated Tetanus shot by July 8th or he would be “removed from active duty due to non compliance”. The Grievor did not provide that proof. He was sent a third email on July 9th stating that he had missed the deadline and therefore was “no longer qualified to work as a paramedic”. He was told that his next shift was cancelled. He was also advised as follows:

Once you have proof of an updated tetanus shot, please ensure that proof is hand delivered to [Robert Duquette, Manager-Quality Programs and Professional Development] or Leigh Anne Marley (HR). Your employment status will be evaluated at that time.

He was then sent another notice via Webmail on July 11th advising that he was “removed from the schedule”. As a consequence, he missed his next scheduled shifts, being July 11, 12 and 21. He did not have any scheduled shifts after that date because he had not sent in any indication of further availability beyond that point.

[...]

The Grievor did ultimately get his Tetanus shot on July 24th. He testified about why he failed to renew his immunity on time. First, he said that his comments about not wanting to go to a hospital to get the shot should not be taken out of context. He admitted that he had said that he didn’t think it was “important enough to go to the hospital”, but he said that he had meant that comment in the context of not wanting to take up the valuable services of emergency staff who are busy taking care of more important medical issues. He also said that he did not want to wait the two weeks that would have to go by before he would be able to get an appointment with his family doctor for “non-essential” visits. But he stressed that the most important reason for the delay was that he is not in favour of vaccinations, for reasons of “conscience”. He admits that he never mentioned this rationale to his Employer, and that the first time he raised this was at the arbitration hearing. He said that he did not reveal it to his Employer at the time because he knew others had lost their jobs because of refusals to get the influenza shots, and he was not sure if his “personal reasons were valid”. But he tried to show the depth of his feelings by the testimony of both he and his wife about the fact that they believe that vaccinations are not beneficial to one’s health. As a result, they have declined to have their young son immunized. His wife has signed a “Statement of Conscience or Religious Belief Affidavit” affirming that the requirements of the Immunization of School Pupils Act, 1990 conflicts with her “sincerely held convictions based on religion or conscience”. This affidavit is necessary for the child to be able to attend school without immunization. However, by July 24th, the Grievor had come to the conclusion that he needed to stay employed and he knew that others had lost their jobs with this Employer for failure to maintain their influenza immunizations. He was not prepared to lose his job over this issue. So he went into a convenient V.O.N. office and had the nurse on duty inoculate him on July 24th.

[...]

This leaves the question of whether failure to get the immunization on time can be excused by the Grievor’s claim that he was dealing with an issue of “conscience”. The Employer challenged the credibility of this claim, primarily because other excuses were offered before the discharge and the claim was first articulated during this arbitration hearing. It can be accepted that one might be reluctant to reveal certain personal beliefs. It can also be appreciated that the Grievor might have felt his job would be in jeopardy if he told the Employer that he might refuse to take the immunization. Other paramedics at this Service had been terminated for failure to obtain influenza shots. So even if one gives the Grievor the benefit of the doubt about the timing of his revelation, one must examine exactly what he is saying. He said his reluctance to renew his immunity was based on his “conscience”. He explained this by saying, “I am not in favour of vaccinations. . . . My wife and I believe that vaccinations are not beneficial to one’s health.” Counsel for the Union characterized the Grievor’s situation as a “struggle of conscience, with the Grievor trying to reconcile his personal beliefs with his employment responsibilities, but ultimately deciding in the Employer’s favour.” Accepting that witnesses are not expected to be able to articulate their positions as eloquently as skilled advocates, it still cannot be concluded that the Grievor’s testimony establishes a genuine “struggle of conscience”. First of all, he said nothing to that effect. At its highest, the Grievor stated his personal opinion that vaccinations are “not beneficial to one’s health”. He stated no moral or spiritual objection to vaccinations, simply a lack of belief in their value. It is recognized that his wife signed an affidavit saying that she had objections to their son being vaccinated on the basis of her “religion or conscience”. But she made it clear that this was based upon the conclusions she had reached after researching the body’s ability to heal itself. More importantly, she also indicated that she recognized that her husband had to make his individual choice about the issue. Her affidavit cannot be taken as evidence of his state of mind. While one can accept that he may not believe in the value of immunizations, that does not elevate his opinion to the level of “conscience”. One’s moral beliefs may well amount to relevant and mitigating factors in situations where employment obligations conflict with deeply held spiritual or moral beliefs. But this is a case involving a statutory obligation to maintain immunity because of the risks posed to the pubic and co-workers. There was no evidence about his “spiritual or moral” concerns in relation to a Tetanus shot. Taking the Grievor’s words at their best, it can only be concluded that the Grievor may have genuinely believed that vaccinations offered little benefit to anyone. Nor did he “resolve the issue in the Employer’s favour”, as the Union wants to suggest. The Grievor simply decided that he wanted to keep his job. That is what made him get the shot, not an acceptance of his Employer’s needs. Taken together, his evidence falls far short of establishing a moral or spiritual justification for failing to live up to the requirements of Article 27.01 or 27.02. Further, the Grievor also works full time as a paramedic for another Service. The issue of immunizations was not new to him. Therefore, it strains credibility to accept that he was suddenly incapacitated by the “struggle” about whether to get a Tetanus shot in July 2006. He has had to maintain immunizations during his entire career as a paramedic, with this Service and for his full-time position. The evidence leads to the conclusion that he simply ignored the issue until he found himself off the roster and then he obtained the shot at a time and place that was most convenient for him. Therefore, none of the reasons that the Grievor has offered for the delay amount to appropriate or justifiable excuses. In this situation, the Employer had just cause for taking a disciplinary response.

[...]

As a result, on the basis of the evidence at this hearing, it must be concluded that the Employer had just cause for discharge and that there are insufficient mitigating factors to warrant the substitution of a lesser penalty. Accordingly, the grievance is dismissed.

In Trillium Ridge Retirement Home v. S.E.I.U., Local 183, Local 183, 1998 CarswellOnt 7647, Arbitrator Emrich dealt with a group grievance. The employer operated a nursing and retirement home in the City of Kingston. The employer introduced a mandatory policy requiring staff to be vaccinated and/or to take antiviral medication, or to miss shifts of work until immunity was acquired. The Arbitrator held that the policy was reasonable in the circumstances, but that where the employee may be able to accept either the vaccine or antiviral medication for medical or religious reasons different considerations may prevail and a different balance may be struck between the competing interests of the parties:

47 Clearly the policy was designed to encourage and provide an incentive to staff to accept vaccination or amantadine. The purpose of such measures was to encourage the widest vaccination of staff and residents possible, while not imposing these measures in the absence of apparent consent. The refusal to permit non-immunised staff to work was not disciplinary in purpose or intent. It was a measure designed to isolate potential sources for transmission of viral infection. There was no disciplinary notation made in the grievors' records, and the evidence indicates no disciplinary intent. On the other hand, the basis of the bargain is that an Employer must pay employees in exchange for their attendance at work. A fundamental obligation of the employee is to attend work and provide productive service. In a long-tem care setting such as this, employees must realise that special measures may be needed to safeguard the health and safety of the frail elderly population that they serve. If such employees choose not to be immunised or to refuse an alternative antiviral medication, why should the Employer pay such employees for the balance they strike between their right to bodily integrity and the requirement to be present and fit for work? Where the employee may be unable to accept either the vaccine or antiviral medication for medical or religious reasons, different considerations may prevail and a different balance struck between the competing interests of the parties. Such employees do not really have a choice whether to accept the immunisation measures available or may have rights under human rights legislation that could protect their right to refuse these measures. The evidence before me does not establish that any of the grievors fit into this category of employees.

[...]

51 For the reasons given, I conc

Alexsei publishing date:
46