October 19, 2021
Author: Dylan Snowdon
As more employers incorporate COVID-19 vaccination policies, employees seeking to avoid compliance with the policy may claim an exemption based on religious beliefs. This post will look at the most common religious exemption requests that Alberta employers are currently facing.
In short, for a religious belief exemption to meet the protected grounds under Alberta’s Human Rights legislation, a person would need to demonstrate that their faith specifically forbids vaccination and that they are a member of that faith sincerely holding the beliefs of that faith.
The Supreme Court of Canada considered the scope of religious beliefs in 2004 in Syndicat Northcrest v Amselem. That case involved a claim under the Quebec Charter of Rights and Freedoms which also guarantees freedom of religion. The definition of religion developed in Syndicat states:
In order to define religious freedom, we must first ask ourselves what we mean by “religion”. While it is perhaps not possible to define religion precisely, some outer definition is useful since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of religion. Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.
The Supreme Court of Canada was clear that the protection applies to both mainstream and lesser known religions. As long as an employee has a “sincerely held” belief in a concept that fits within the Court’s definition of religion, the employee can claim protection against discrimination under Canada’s human rights laws.
Liberty of Conscience and COVID-19 Vaccine Mandates
The primary religious exemption request currently circulating in Alberta is being made by Christians claiming that it is part of Christianity that individuals must have “Liberty of Conscience”; with references made to Romans 14 and First Corinthians 16:19-20. The argument can be summarized as: my religion says that I should be free to follow my conscience, my conscience tells me that taking the COVID-19 vaccine is a bad idea, therefore it is part of my religion that I should not take the COVID-19 vaccine. Alternatively, the argument could be framed as: My religion states that my body is a temple, therefore I should not put anything damaging into my body, I think the COVID-19 vaccine will damage my body, therefore my religion forbids my use of the COVID-19 vaccine.
Although interpretations of religious texts can vary, there is virtually no chance that a court or human rights tribunal would support a conclusion that these sections of the Christian Bible sufficiently link a personal preference not to receive a COVID-19 vaccination to a deeply held religious belief within the meaning of religion as defined by the Supreme Court of Canada. The Alberta Human Rights Commission specifically states that personal preference is not a protected ground under the Alberta Human Rights Act.
One quick note is that every religious exemption request citing Christianity that this author has seen has referenced First Corinthians 16:19-20, which does not contain the “body is a temple” reference. This appears to be a typographical error that is being copied through social media, as the actual reference to “body is a temple” is in First Corinthians 6:19-20. It may be reasonable to question how deeply held the religious belief actually is when those requesting an exemption appear not to have read the text they are citing as the basis for their deeply held belief.
Vaccine Contents and COVID-19 Vaccine Mandate Compliance
Another basis for religious exemptions that is being sought is based on arguments that an individual is forbidden from using certain contents of a COVID-19 vaccine. This argument is based on misinformation about the contents of vaccines, primarily circulating on social media. COVID-19 vaccines do not contain fetal cells or pork products.
Notice of Liability and Vaccination Policy Compliance
Another form letter circulating online and on social media with a goal of avoiding vaccination policy compliance is a “Notice of Liability” (example link here). This form letter takes the approach of ‘everything and the kitchen sink’ in an apparent attempt to raise legal issues that will intimidate an employer to rescind its vaccination policies. Form letters of this type, and this one in particular, are similar to the Organized Pseudolegal Commercial Argument (OPCA) litigants addressed in the Meads v. Meads decision.
A complete legal analysis would require going through such letters point-by-point. However, in general OPCA types of letters are unified by:
- a characteristic set of strategies (somewhat different by group) that they employ,
- specific but irrelevant formalities and language which they appear to believe are (or portray as) significant, and
- the sources from which their ideas and materials originate.
Notice of Liability Sample Letter
The sample letter linked contains false information such as:
- The COVID-19 vaccines are experimental gene therapy. This is false.
- There is no public health emergency. This is false.
- COVID-19 tests create large numbers of false positives. This is false.
- COVID-19 vaccines are more dangerous than the risks of exposure to COVID-19. This is false.
- Hydroxychloroquine and Ivermectin are safe and effective alternative treatments for COVID-19. This is false.
- COVID-19 vaccines are experimental. This is false.
Notice of Liability letters such as the sample linked also contain unsupportable legal conclusions that employers implementing vaccination policies are in violation of a wide variety of laws including: the Criminal Code of Canada, the Canadian Charter of Rights and Freedoms, the Crimes Against Humanity and War Crimes Act of Canada, the Nuremberg Code, and the Helsinki Declaration.
So long as current circumstances warrant employers implementing health measures like vaccine mandates, and employers implement vaccination policies that properly addresses human rights and privacy obligations, and only proceed with terminations of employment or mandated leaves of absence when appropriate in each individual situation, it is unlikely that an employee would succeed in pursuing a damages claim against an employer.
Employment Lawyers for COVID-19 Related Questions
Although the tactics discussed above do not create a requirement for employers to provide accommodation on the basis of religious beliefs, implementing a mandatory vaccination policy requires each exemption request to be assessed on its own merits. Carbert Waite’s Employment Lawyers are available to discuss vaccination policies and exemption requests to ensure your business is taking all appropriate steps to keep a safe workplace.