Recently when I was conducting legal research on an unrelated matter, I stumbled upon a decision from the Ontario Human Rights Tribunal (“Tribunal”) which, although by now is a decade old, is very timely in the issues that it raises given the COVID-19 pandemic.
The facts of Ataellahi v. Lambton County (EMS) 2011 HRTO 1758 are straightforward. The applicant, Mr. Ataellahi, filed an application pursuant to the Ontario Human Rights Code (“Code”) alleging discrimination with respect to employment on the basis of creed. Mr. Ataellahi, a part-time paramedic, alleged that he was discriminated against in shift scheduling, discipline and refusing him work during winter 2010-2011 influenza respiratory outbreaks because he was not vaccinated against influenza.
When asked by the Tribunal to provide with submissions on how the vaccination requirement infringed on his rights the Mr. Ataellahi’s response was that the vaccine policy was being applied inconsistently since, among other things, respiratory outbreaks exist throughout the year and there is no requirement for him to be vaccinated other than during the winter time.
Although the argument was logically appealing, the Tribunal noted that Mr. Ataellahi’s decision not to be immunized was based on certain medical considerations rather than religious belief. The Tribunal has held that what identifies as a creed is a set of sincerely held religious beliefs and practices. Such beliefs need not be based on the edicts of an established church or particular denomination. Relying on the Supreme Court of Canada’s decision in Syndicat Northcrest v. Amselem  2 S.C.R. 551 the Tribunal noted that there has to be a connection wherein an individual demonstrates that he or she sincerely believes or is genuinely undertaking “to connect with the divine or as a function of his or her spiritual faith.”
The Tribunal concluded that in the absence of any such religious beliefs or practices influencing the decision to not be immunized, Mr. Ataellahi couldn’t assert that he is being discriminated against on the basis of creed. The Tribunal also stated that it does not have the general power to inquire into all claims of unfair treatment but only those that are specifically based on grounds listed in the Code.
It is my opinion that employers should not be able to force employees to be vaccinated for certain diseases including COVID-19 or coronavirus. We live in a democracy and bodily integrity and privacy are of paramount importance. However, some workplaces (such as those in the healthcare industry) may have in place certain additional requirements with respect to the health of its employees. Ultimately, the aforementioned interests constitute a careful balancing act.
For instance, in the event of an effective vaccine for COVID-19, it is not unreasonable for long-term care facilities to expect those in its employ to undergo immunization for COVID-19. One may of course argue that such a requirement would constitute a de facto imposition of the vaccine but, strictly speaking, the employee is given the right to determine which of their interests prevails. This has to, by necessity, be a personal decision as long as the consequences are well known in advance.
Things get trickier if “regular” employers demand to make vaccination of COVID-19 a requirement of their employees. Would such a requirement be justifiable? I would argue that such a requirement may be justifiable more so in high-density workplaces such as the manufacturing industry; however, what about sporadically occupied large office spaces or places with minimal interaction between co-workers? Would employers be right to impose the immunization requirement then?
Assuming an employee refuses to be vaccinated against COVID-19, should such an employee be terminated for cause? Courts will take on a contextual approach to determine if just cause exists to terminate an employee without notice or compensation. In my view, terminating one’s employment due to a refusal to be suddenly vaccinated should not amount to cause at law per se and, depending on the circumstances, the employee may be entitled to reasonable notice of termination or an appropriate severance package instead in the non-unionized context.
This leads to the final question on when terminating an employee for refusing to be immunized against COVID-19 could result in discrimination. A refusal to vaccinate oneself on the basis of mere political belief is not enough to claim discrimination under the Code. However, consider an employee who actually holds a sincerely-held belief as a result of which immunization would result in a moral compromise? Will science trump religion in such a case or will religion be given a pass even if the job requirements are such that immunization as a condition for continuing employability is reasonable? Similarly, hypothetically speaking an employee may have a Code-protected medical condition that prevents him or her from being immunized. How the law will tackle these concerns remains to be seen.