October 19, 2021

The COVID-19 pandemic has required Canadian employers to take steps to protect the health and safety of the workforce as a whole, while upholding the human rights of individual employees. Many employers have sought to fulfill these conflicting obligations by implementing mandatory vaccination policies with exemptions for medical or religious reasons. However, it remains unclear in what circumstances, and to what extent, employees are entitled to religious accommodation during a global health crisis. In fact, the Ontario Human Rights Commission recently issued a policy statement stating, “Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements. The duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship – such as during a pandemic.”[1]

In light of the approximate 1.7 million Canadians who have contracted COVID-19, of which over 28,000 have died,[2] it is not surprising that most businesses and organizations have taken the position that the health and safety of the group should be prioritized over individual religious freedoms. However, as we await courts and tribunals to weigh in on this issue, employers should tread lightly when considering religion-based vaccination exemption requests. An employer’s failure to fulfill the procedural requirements of the duty to accommodate—taking an individualized and contextual approach, in good faith, to determine possible accommodation solutions—may amount to discrimination (as well as constructive dismissal), even where no substantive accommodation could have been provided short of undue hardship.

This article provides an overview of the duty to accommodate religion in Canadian workplaces (with a particular emphasis on Ontario’s human rights regime), and offers best practices for employers to fulfill this duty in the context of mandatory COVID-19 vaccination policies in order to minimize their risk of liability under the Ontario Human Rights Code (the “Code”).[3]

Legislative Landscape – The Canadian Charter and Provincial/Territorial Human Rights Statutes

All human rights legislation must follow the Canadian Charter of Rights and Freedoms (the “Charter”).[4] Section 15(1) of the Charter states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”[5] Section 2(a) of the Charter provides that everyone has “freedom of conscience and religion”, which is a “fundamental” freedom.[6] The Charter guarantees the rights and freedoms set out in it “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”[7]

An individual can only use the Charter to challenge a governmental decision, action or law (such as provincial or territorial human rights legislation) on the grounds that it does not offer the protection to individuals as provided by the Charter. The Charter does not apply to private-sector employers. As such, and contrary to popular belief, most employees requesting a religious exemption under a mandatory vaccination policy will typically seek accommodation under provincial or territorial human rights legislation, rather than the Charter.

Each of the provinces and territories in Canada have enacted their own human rights legislation, all of which prohibit discrimination in employment based on “religion”, “religious beliefs” and/or “creed”. In Ontario, for instance, section 5(1) of the Code states:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.[8]

Federally-regulated industries and workplaces, such as banks, airports and telecommunications, are governed by the Canadian Human Rights Act, which prohibits discrimination based on “religion”.[9]

Establishing Whether an Employee’s Religious Beliefs Are Protected Under Human Rights Legislation

None of the federal, provincial or territorial human rights statutes provide a comprehensive definition of “religion”, “religious beliefs” or “creed”, although some statutes do provide partial definitions. The Alberta Human Rights Act defines “religious beliefs” to include “native spirituality”.[10] The Saskatchewan Human Rights Code, 2018 provides that “religion” includes “all aspects of religious observance and practice as well as beliefs.”[11] Such definitions undoubtedly leave much to be desired. The nature and scope of these terms have thus been defined over time by courts and tribunals.

In the leading decision of Amselem v. Syndicat Northcrest,[12] the Supreme Court of Canada set out the criteria that must be established before a religious belief will engage the protection of human rights legislation. This criteria was adopted by the Human Rights Tribunal of Ontario (the “HRTO”) in Clipperton-Boyer v. RedFlagDeals.com and formulated as follow:

In order [to] engage the protection of the Ontario Code against discrimination because of creed, an applicant must demonstrate that he or she sincerely believes that a certain practice or belief is experientially religious in nature in that it is either:

  1. objectively required by the religion, or
  2. that he or she subjectively believes that it is required by the religion, or
  3. that he or she sincerely believes that the practice engenders a personal, subjective connection to the divine or to the subject or object of his or her spiritual faith, and as long as that practice has a nexus with religion.[13]

This notion of creed encompasses both obligatory and voluntary expressions of faith. As stated by the Supreme Court, “it is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection.”[14]

Duty to Accommodate

Where an employee’s religious beliefs meet the criteria set out above, his or her employer must accommodate those beliefs up to the point of “undue hardship.” In Ontario, undue hardship is determined with reference to cost, any outside sources of funding, and any health and safety requirements.[15]

Accommodation is both a procedural and substantive duty.[16] In order to prove that they have discharged their duty to accommodate, employers must demonstrate that:

  1. they followed appropriate procedures, i.e., taking the necessary steps to determine what kinds of accommodations might be required to allow an employee with a Code-protected characteristic to perform his or her essential duties on an equal basis with others; and
  • they accommodated the employee to the point of undue hardship, i.e., actually and effectively providing the accommodation(s) necessary to allow the employee to perform his or her essential duties on an equal basis with others.

Best Practices for Accommodating Religion in the Workplace

With the above considerations in mind, there are a number of best practices that employers should follow when establishing and enforcing mandatory COVID-19 policies in order to fulfill their duty to accommodate employees with Code-protected religious beliefs.

Prior to establishing a mandatory COVID-19 policy, employers should:

  • determine the essential requirements of the job(s) in question, and consider whether those requirements could be met in different ways, e.g., by working from home or undergoing COVID-19 testing before attending the workplace; and
  • ensure that persons involved in the accommodation process have adequate training in respect of the duty to accommodate.

Once a COVID-19 policy has been established, employers should:

  • ensure that the policy and any other information about the employer’s accommodation procedures are brought to the attention of all employees, and remain readily available; and
  • have in place an effective, transparent and timely dispute resolution mechanism to identify and resolve problems relating to accommodations that have been provided.

In considering religion-based vaccination exemption requests, employers should:

  • request reasonable information and documentation in support of the employee’s request, including:
    • information about the needs associated with the employee’s religion, belief or practice;
    • information about whether the employee can perform the essential duties or requirements of the job, with or without accommodation;
    • information about the type of accommodation(s) that may be needed to allow the employee to fulfill the essential duties or requirements of the job;
    • evidence of the sincerity of the employee’s religious belief, if sincerity is at issue; and
    • information about the extent to which the employee’s religion, belief or practice may allow for exceptions to any rule against vaccinations;
  • where more information about an employee’s religion, belief or practice is needed, request information that is the least intrusive of the employee’s privacy while still being sufficient to make an appropriate accommodation;
  • keep in mind that religious beliefs are deeply personal and employers are not qualified to rule on the legitimacy of any given religious practice or belief, or to choose among various interpretations of belief;
  • when inquiring into the sincerity of the employee’s religious belief (where there are legitimate reasons for believing otherwise), focus not on the employee’s past practice or belief, but on the employee’s belief at the time of his or her request for an exemption;
  • even where it appears that no appropriate accommodation could be made short of undue hardship, explore possible accommodation solutions with the employee so as to fulfill the procedural aspect of the duty to accommodate; and
  • take reasonable steps to maintain confidentiality in the accommodation process and to protect the religion-related information of employees provided accommodations.

It is important to note that the search for accommodation is a collaborative process, requiring the involvement and cooperation of the employee in need of accommodation and the employer. If the employee refuses to provide legitimately requested information in any of the above respects, and the employer can show that this information is needed, the employee seeking accommodation may be found to not have taken part in the accommodation process and the employer would likely be relieved of further responsibility.

Conclusion

Despite a growing body of scientific evidence demonstrating the safety and efficacy of COVID-19 vaccinations, a substantial portion of the Canadian population remains unvaccinated—at the time of writing, approximately 12.8% of Canadians 12 and older (nearly 4.3 million people) have not received a single dose of a COVID-19 vaccine.[17] Given the proliferation of “anti-vaxxers”, as well as a growing number of religious groups supporting their members in refusing COVID-19 vaccinations by issuing official statements against the vaccine and offering exemption forms, employers are increasingly receiving religion-based vaccination exemption requests. An employer’s failure to respond to such requests in an appropriate manner could expose the employer to a legitimate discrimination claim, which could form the basis of a costly constructive dismissal claim. Therefore, it is critical that employers proceed with caution when dealing with accommodation requests, follow the best practices outlined above, and seek legal counsel when establishing and enforcing mandatory COVID-19 vaccination policies.


[1] Ontario Human Rights Commission, OHRC policy statement on COVID-19 vaccine mandates and proof of vaccine certificates (September 22, 2021), online: < http://www.ohrc.on.ca/en/news_centre/ohrc-policy-statement-covid-19-vaccine-mandates-and-proof-vaccine-certificates>.

[2] Canada, COVID-19 daily epidemiology update, October 15, 2021 update, online: <https://health-infobase.canada.ca/covid-19/epidemiological-summary-covid-19-cases.html>.

[3] Human Rights Code, RSO 1990, c H19 [Code].

[4] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[5] Ibid, s 15(1).

[6] Ibid, s 2(a).

[7] Ibid, s 1.

[8] Code, supra note 3, s 5(1).

[9] Canadian Human Rights Act, RSC, 1985, c H-6, s 3(1).

[10] Alberta Human Rights Act, RSA 2000, c A-25.5, s 44(1)(m) “religious beliefs”.

[11] Saskatchewan Human Rights Code, 2018, S.S. 2018, c. S-24.2, s. 2(1) “religion”.

[12] 2004 SCC 47 [Amselem].

[13] Clipperton-Boyer v RedFlagDeals.com, 2014 HRTO 1796 at para 16.

[14] Amselem, supra note 11at para 47.

[15] Code, supra note 3, s 11(2).

[16] Baber v York Region District School Board, 2011 HRTO 213 at para 94.

[17] Canada, COVID-19 vaccination in Canada, October 18, 2021 update, online: <https://health-infobase.canada.ca/covid-19/vaccination-coverage/>.