Public Health wrong to fire Sudbury nurse for refusing COVID vaccine: Arbitrator

Public Health wrong to fire Sudbury nurse for refusing COVID vaccine: Arbitrator

She opposed getting vaccinated out of concern COVID vaccines may have been developed in part by the use of cells grown from aborted fetuses

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Public Health Sudbury and Districts discriminated against a nurse it fired because she refused to get a COVID-19 vaccination, a provincial arbitrator has ruled.

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In his ruling, arbitrator Robert Herman said it was wrong for Public Health – which has led the effort to get people in the Sudbury area vaccinated against the deadly virus – to terminate the nurse.

She had sought an exemption from getting vaccinated for religious reasons under the Ontario Human Rights Code. The employee is a devout Roman Catholic and a member of the Latin Mass, a particularly strict part of the church.

Its believers object to the use of fetal cell lines in the development of vaccines. Fetal cell lines are cells grown in a laboratory based on aborted fetal cells collected generations ago.

Members of the Latin Mass strongly object to abortion, which they regard as murder, and the use of fetal cell lines, which come from aborted fetal cells.

Herman said despite some inconsistencies in the nurse’s evidence and behaviour, the health unit should have granted her an exemption for religious reasons rather than firing her.

“There can be multiple reasons for objecting to getting vaccinated, but as long as one of the reasons is sincerely and legitimately based upon one’s creed, as subjectively interpreted and applied, an applicant would be entitled to an exception under the (human rights code) and the vaccine policy itself,” Herman ruled.

“Once the grievor learned about the fetal cell line connection with the vaccines, even if that connection is factually and objectively quite remote, if the grievor sincerely believes that her faith does not allow her to get vaccinated, that would be sufficient grounds for granting her request for an exemption.”

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The hearing dealt with a Public Health policy issued in August 2021 regarding COVID that required vaccination by all staff, subject to exemptions on medical or Human Rights grounds. The grievor in the case claimed an exemption on the basis of “creed” within the meaning of the human rights code and filed a grievance when her exemption request was denied.

Last September, Public Health determined it would require all staff to be fully vaccinated against COVID-19 unless an exemption under the policy applied. The health unit also decided that its remaining unvaccinated employees would be subject to a leave of absence followed – potentially – by termination if they did not become fully vaccinated.

On Oct. 5, the grievor’s exemption request was denied on the basis that an employee’s singular belief against vaccinations does not amount to creed within the meaning of the human rights code and placed the grievor on an unpaid leave of absence.

The grievor was one of only three employees (out of about 559 staff) that Public Health considered to have violated its COVID-19 vaccination policy by failing to receive the vaccine. She was the only ONA member to grieve.

On Oct. 15, ONA filed a grievance on the grievor’s behalf. The arbitration hearing was held via Zoom videoconference this spring. Herman had reserved his decision.

The arbitration heard the nurse worked in health promotion for Public Health, administered vaccines herself, and was involved in communicating with members of the public about COVID-19 and COVID-19 vaccinations.

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She began as a contract employee in October 2020 and became a full-time employee as of September 2021. She was placed on an unpaid leave of absence, and subsequently terminated, for failure to get vaccinated, as required by the employer’s vaccine mandate.

The health unit told the arbitration hearing that it does not dispute that the grievor is a devout Catholic and is firmly anti-abortion, and that being anti-abortion is part of her faith.

However, it said the fundamental question is whether the grievor sincerely believes that using any COVID-19 vaccines derived from fetal cell lines in fact interferes with the practice of her faith, or whether her refusal to take any of the vaccines is part of an overarching set of beliefs that are consistent with her conduct or practices.

The health unit said her actions in virtually every other context during her employment are inconsistent with her claim that her faith requires her to decline to get vaccinated for the reasons she has asserted.

Instead, the health unit argued the grievor decided not to get vaccinated for reasons other than faith and then latched on to the “faith” rationale once she realized it might enable her to claim an exemption.

The grievor may have a singular belief against using vaccines, Public Health said, but her unwillingness to get vaccinated is not connected to her faith.

The employer noted that the vaccines were available from as early as December 2020, and even though governments, public health authorities, and employers were urging everyone to get vaccinated, the grievor did not get vaccinated.

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The health unit said the grievor made the decision not to get vaccinated before she was aware of any connection between the vaccines and fetal cell lines, perhaps because she did not fully accept that the vaccines help reduce the spread of COVID-19.

Herman said despite the nurse’s inconsistencies – and the fact the Catholic Church itself does not oppose vaccines – the health unit should have respected her creed, or religious beliefs, and granted the exemption.

“The grievor’s testimony must be assessed in context,” Herman wrote. The grievor has been a devout Roman Catholic for many years, and her faith has formed a major part of her life and motivated and guided her beliefs and her conduct for many years in many aspects of her life.

“She has for a number of years been a devout and active member of the Latin Mass community, a more traditional and more orthodox subset of the Catholic Church. She has for a number of years conducted herself in a manner consistent with her understanding of Latin Mass doctrine and consistent with her beliefs as to how that doctrine should be applied to her life. Her evidence about her religious beliefs and how she has generally conducted her life according to her faith is credible … ”

[email protected]

Twitter: @HaroldCarmichae


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