An arbitrator has ruled Public Health Sudbury violated the Ontario Human Rights Code prohibition against discrimination on the basis of creed when it terminated a nurse who refused a coronavirus vaccination because it was against her religious beliefs.

“The decision is significant because the arbitrator, Robert Herman, is well-respected and his reasoning will draw the attention of and influence a fair number of employers,” says Doug Sanderson, a former vice-chair of Ontario’s human rights tribunal and a labour and employment lawyer at Littler Mendelson, who wasn’t involved in the case.

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Public Health Sudbury required all employees to be fully vaccinated subject to medical and human rights exemptions. The grievor, a public health nurse, claimed an exemption as an observant member of the Latin Mass community, a more traditional and orthodox subset of the Catholic church.

The community regards coronavirus vaccinations as tantamount to condoning abortion because researchers used fetal cell lines in developing the vaccines. The broader Catholic church, however, has encouraged vaccination, as it regards the connection with fetal tissue as too remote.

The employer, citing an Ontario Human Rights Commission policy statement that “personal preferences and singular beliefs” didn’t satisfy the meaning of “creed” under the code, refused the grievor’s request for an exemption based on creed.

Read: Exceptions key to vaccination policies, as more employers require jab: lawyer

Herman, however, noted the Latin Mass community is a “religion or creed” because it’s “an outshoot of or a specific subset of the Roman Catholic church,” adding its members subscribe to religious-based beliefs that include prohibitions against abortion and forbids members from “condoning, cooperating with or participating in abortions.”

In this case, Herman concluded the grievor was entitled to an exemption: the evidence established her sincere belief that a coronavirus vaccination would amount to condoning abortion, despite the fact she didn’t consider whether she could continue to take other medicines that had similar connections to fetal cell lines or that administering vaccines that used fetal cell lines in their development was contrary to her beliefs.

“Despite the inconsistencies discussed above, it is unlikely the grievor has fabricated or simply ‘latched’ on to a creed-based claim for an exemption in order to avoid getting vaccinated,” stated Herman.

Read: Employers requiring coronavirus vaccinations must consider human rights, privacy

But Andrew Monkhouse, managing partner at Monkhouse Law Employment Lawyers, who wasn’t involved in this case, says the case is “something of an outlier. Unlike other arbitrators who have dealt with this issue, Herman doesn’t get into any of the overlying societal issues relating to vaccination. So the decision sets a fairly low threshold for a ‘creed’ exemption.”

Nonetheless, he adds the decision might portend future reasoning. “The moral authority for getting a vaccine changed when Omicron made it obvious we’ll never hit herd immunity and people will be asking whether reaching 100 per cent vaccination would really have made a difference. As we realize what vaccines do best is prevent severe complications and death — but aren’t good at avoiding infection — the dynamic is changing from thinking about the harm unvaccinated people could do to others to believing the people most likely to suffer serious harm are those actually refusing vaccination.”

The grievor’s union, the Ontario Nurses’ Association, declined to comment because the case is still before the arbitrator.

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