A public health nurse in Subdury, Ont., has won her arbitration case after refusing to be vaccinated against COVID-19 because it went against her religion.
The unnamed woman (we will refer to her as the nurse), a Catholic, worked for Public Health Sudbury & Districts (PHSD) in Ontario.
As the pandemic unfolded, the provincial government required a number of employers in the health-care sector to implement vaccination policies.
In August 2021, PHSD developed its policy. It required employee to:
- Provide proof of vaccination;
- Provide proof of a medical exemption; or
- Complete an educational program regarding the COVID-19 vaccine.
The policy stated, among other things, that it would be applied in accordance with the Ontario Human Rights Code.
Ultimately, PHSD required all employees to be fully vaccinated unless a legitimate medical exemption applied or an exemption was otherwise required by the Human Rights Code.
The vaccination policy took effect on Sept. 1, 2021. On Sept. 17, the nurse in this case submitted a COVID-19 Vaccination Declination Form, attesting that she had reviewed the education program and declined to receive the vaccine.
She also provided a commissioned affidavit, sworn by her on Sept. 15, 2021, which stated in its entirety:
Pursuant to grounds protected under the Ontario Human Rights Code, I hold a valid exemption to COVID-19 vaccination.
In accordance with the Ontario Human Rights Code, every person has the right to equal treatment, without discrimination because of age, race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, marital status, family status or disability.
Exemption rationale has been verified and validated today.
PHSD refused the exemption after reviewing it on the grounds than an employee’s singular belief against vaccinations does not amount to creed within the meaning of the Code. The nurse was placed on unpaid leave.
Notably, she was only one of three employees (out of about 559 PHSD staff) who it considered to have violated the vaccination policy.
ONA backs nurse up
At arbitration, the Ontario Nursing Association (ONA) said the real issue to decide was whether the nurse had a bona fide belief in a creed, and whether that belief supports her exemption request.
The ONA said her belief was sincerely held.
“Because to do so would in her mind be contrary to her conscience and would be tantamount to condoning abortion, given the use of fetal cell lines in research for all of the COVID-19 vaccines,” the arbitration read.
PHSD said it does not dispute the fact the nurse is a devout Catholic and firmly anti-abortion. But it believed the nurse refused to get vaccinated for reasons other than faith-based ones and then simply latched onto it once she realized it might enable her to claim an exemption.
It pointed out that she made the decision not to get vaccinated before she was aware of any connection between the vaccines and fetal cell lines.
PHSD pointed to 13 “inconsistencies” in the nurse’s conduct.
First, when she learned years ago about fetal cell lines and their use in developing medicines, she took no steps then to inquire whether the medicines she and her family were taking had any connections to fetal cell lines, even though these medicines also had to be ingested.
Second, she was sceptical of vaccines and opposed to getting vaccinated before she had any knowledge that the vaccines had any connection to fetal cell lines.
Third, although firm in most of her views and testimony, she was repeatedly vague and evasive in questions about her views of the efficacy of the vaccines.
Fourth, upon learning of the fetal cell line connection to the vaccines in general terms, she did no investigation into the actual relationship of fetal cell lines to the vaccines, content to rely upon only a limited understanding that they had been used in researching the vaccines.
Fifth, the nurse repeatedly testified that taking the vaccines would be tantamount to condoning, cooperating with, or participating in abortions. However, taking a vaccine that does not itself contain fetal cell lines and where the use of fetal cell lines only occurred many generations ago during the research and development phases of the vaccine, cannot reasonably be considered to be condoning, cooperating with or participating in abortions.
Sixth, if she had real concerns about condoning, cooperating with, or participating in abortions through her use of the vaccines, she would have inquired into the use of fetal cell lines in other areas of her life, such as whether her work benefit plan was funding contraceptives or whether certain institutions supported abortions or whether any other products utilized fetal cell lines for research, yet she did not. The Employer asserts that the single thing she looked at with respect to fetal cell lines or the support of abortion was the vaccines, and that is because she was already opposed to taking them for reasons unrelated to creed.
Seventh, both before and after she recently learned about the connection of the vaccines with fetal cell line research, she took no steps to inquire whether other products she and her family were ingesting, such as the medicines they took, were similarly connected.
Eighth, the nurse acknowledges that her creed requires the balancing of interests and weighing of competing moral interests, yet she gives no weight to the fact unvaccinated persons present greater risks to the health of others.
Ninth, she gives no weight to the Pope’s exhortation that on moral grounds Catholics should get vaccinated.
Tenth, as a public health nurse she is charged with promoting public health as a moral good, yet she jeopardizes this with her own behaviour.
Eleventh, her creed and opposition to abortion are based upon the natural law and the right to life, yet the grievor’s stance puts lives at greater risk.
Twelfth, she has administered to others vaccines that are connected to fetal cell lines, but objects only if she herself is asked to get vaccinated.
Thirteenth, the nurse has herself taken vaccines in the past that have connections to research using fetal cell lines, without investigating whether they have used or do use fetal cell lines.
Despite the inconsistencies, the arbitrator said it was unlikely the nurse has fabricated or simply “latched” on to a creed-based claim for a vaccination exemption.
“In balance, I consider it more likely that the (nurse) sincerely believes that to get one of the COVID-19 vaccines would be to act in a manner inconsistent with her beliefs and what her faith and creed require of her, and would in her mind amount to condonation of, cooperation with, or participation in abortion,” the arbitrator wrote.
“Since (she) holds a sincere belief, with sufficient nexus to her creed, that to get vaccinated would interfere with the exercise of her faith and her relationship with the divine, (she) is entitled to an exemption based on the provisions of the Code, on the grounds of creed.”
Therefore, she was discriminated against when the employer appliled it vaccine policy to deny the nurse’s requested exemption.
For more information see Public Health Sudbury & Districts v. Ontario Nurses’ Association, 2022 CANLII 48440 (ON LA).