Written on behalf of Peter McSherry

When newly-developed vaccines became available to the public amidst the COVID-19 pandemic, many employers required that their employees submit to vaccination in order to return to work. This requirement was particularly common in the health care setting, wherein nurses, doctors and other medical health care professionals were mandated to receive the appropriate number of COVID-19 vaccinations before they would be permitted to return to the workplace. Although these demands were established as a requirement of continued employment, some such employees sought an exemption from vaccination on religious grounds.

This blog will explore how a unionized employee can prove their religious faith to their employer such that they can substantiate their stance with respect to non-vaccination.

Understanding When Science and Religion Intersect

In Canada, each citizen is afforded freedom on a number of fronts, including freedom to practice the religion of their choosing, in any manner a person deems fit, so long as no laws are broken. It is well known that there are occasions where science and religion intersect in such a way as to dictate the manner and type of health treatments that may be acceptable to a person. One such example is the fact that adherents to the Jehovah’s Witness faith routinely refuse to undergo blood transfusion procedures or accept any blood products, based on their religious beliefs. This is acceptable as every person has a right to self-determination that includes the autonomy to make medical decisions for themselves, which typically includes decisions with respect to vaccination for various diseases.

However, issues can arise when one person’s assertion of their religious freedom interferes with another person’s assertion of their right to be free from situations that pose them harm. For example, when an easily-transmissible, potentially-deadly disease has reached pandemic status, and some people refuse to accept vaccination for that disease on the basis of their religious faith. Many people in Canada declined to become vaccinated for COVID-19, some of them for religious reasons, which resulted in job losses, an issue that was raised in the case of Ontario Nurses’ Association v North East Home and Community Care Support Services.

Health Care Employer Imposes Vaccination Requirement on Employees

The arbitration case between the Ontario Nurses’ Association and North East Home and Community Care Support Services (NEHCCS) involved the grievances of three individuals: “Matthew”, “Mary” and “Erica”, each of whom had worked for the NEHCCS as a nurse. NEHCCS had introduced a policy that required each of their employees to become vaccinated for COVID-19. Matthew, Mary and Erica declined to accept vaccination on grounds that the vaccines had been developed through use of fetal stem cells, which was a violation of their respective faiths. As a result of their refusal to accept vaccination, the three were terminated from their employment with NEHCCS. The three each grieved their respective terminations from employment on grounds that their religious freedom had been violated.

Does an Employer Have the Right to Seek Medical Information from Unionized Employees?

Once a grievance process has been initiated, there are several steps that must occur, in sequence, prior to the hearing of the matter. Specifically, the parties are obligated to disclose certain information to each other with respect to their positions on the case and evidence that supports their position. Following the initiation of the grievance procedure, the employer sought production of several documents from the grieovrs, including:

• copies of each of the grievors’ medical records with respect to vaccination or immunization for any disease;
• copies of any prescriptions issued to each of the grievors from the date they purportedly ascribed to their religion of choice;
• complete medical and dental records for each grievor, from the date each purportedly ascribed to their chosen faith; and
• in the event that any of the grievors did not have a primary health care provider, the records of any hospitals, walk-in clinics or specialists whom each of the grievors had visited, from the date each began to ascribe to their chosen faith.

While the union agreed to provide some of the information requested by the employer, it refused to provide others, such as information that the union considered irrelevant to the central issue.

How Can a Unionized Employee Prove Their Faith to Their Employer to Substantiate Non-Vaccination?

The arbitrator noted that the issues facing the grievors were “whether they have a ‘practice or belief, having a nexus with religion, which calls for a particular line of conduct’, in this case encompassing refusal of vaccinations; and whether they are sincere in that belief”. In assessing the sincerity of a person’s religious belief, “[i]t is important to underscore… that it is inappropriate for courts rigorously to study and focus on the past practices of claimants in order to determine whether their current beliefs are sincerely held. Over the course of a lifetime, individuals change and so can their beliefs”.

Moreover, the courts have stated that “because of the vacillating nature of religious belief, a court’s inquiry into sincerity, if anything, should focus not on past practice or past belief but on a person’s belief at the time of the alleged interference with his or her religious freedom”. The courts have noted that “assessment of sincerity is a question of fact that can be based on several non-exhaustive criteria, including the credibility of a claimant’s testimony … as well as analysis of whether the alleged belief is consistent with his or her other current religious practices.”

Arbitrator Bound to Consider Certain Criteria

In deciding whether the information sought by the employer should be disclosed by the grievors, the arbitrator is bound to consider the following criteria:

1. the information must be arguably relevant
2. the document must be particularized
3. the request must not constitute a “fishing expedition”
4. there must be a clear connection between the information requested and the issue in dispute
5. the disclosure of the requested documents must not cause any undue prejudice

The arbitrator evaluated each request of the employer against this list of criteria, and determined that the request for vaccination and immunization records clearly satisfied all necessary criteria. As such, this information must be produced to the employer. With respect to the requests for copies of all of the grievors’ prescription records, complete medical and dental records, and records of any emergency care facility, specialist or hospital, the arbitrator was satisfied that the employer’s requests were insufficiently particularized:

“I am not persuaded by these submissions as a basis for such a broad pre-hearing production request.  The production request fails to identify which medications the Employer claims have been tested on fetal cell lines.  As such, it is insufficiently particularized.  Absent particularization, it would require production of all of the Grievors’ medical records.  There is no clear nexus between other information in those records and the issues in dispute.  The disclosure of that information would be an unwarranted intrusion upon the privacy of the Grievors and thus unduly prejudicial.” 

Union Directed to Provide Requested Information to Employer

Regarding the employer’s request for medical records specifically related to birth control, which was requested of the two female grievors, the arbitrator noted that “the particulars in relation to [Mary] indicate that her religious beliefs cause her to oppose abortion and therefore preclude her from using products developed through the use of fetal cells; they do not indicate that she believes that life begins at conception or, more to the point, that this is a religious belief that gives rise to her refusal of vaccination.  Similarly, the particulars in relation to [Erica] indicate that her religious beliefs cause her to oppose the use of fetal cells; they are silent with respect to her views on abortion or conception”, which meant that the employer was making an assumption about the individual’s beliefs with respect to abortion.

However, as the request for such information was sufficiently particularized, had a clear connection to the dispute at hand and thus did not constitute a fishing expedition, and would not cause undue prejudice, the union was ordered to release those requested documents as well, subject to redaction of any unrelated information.

Ultimately, the union was directed to provide the employer with all of the information it had requested except for the prescription records and emergency medical and specialist records that pertained to each of the grievors.

Contact Employment Lawyer Peter A. McSherry for Advice on Union Grievances and Workplace Policies

If you are a member of a union and are wondering what your rights are as an employee, contact the Law Office of Peter McSherry for sound legal advice and representation. Whether you want to better understand the terms of your collective agreement, the obligations of your union, or the grievance process, employment lawyer Peter A. McSherry can provide you with the knowledge you need to make informed decisions.

From our office in Guelph, we proudly serve employees in Southern Ontario, providing them with trusted advice and assistance required to obtain the best possible resolution for their employment-related matter. Contact us online or by telephone at (519) 821-5465 to schedule a confidential consultation with a member of our team.