A provincial arbitrator has decided Public Health Sudbury and Districts discriminated against an employee when she was fired in 2021 for refusing COVID-19 vaccination.
At the centre of the arbitration is whether the "grievor" — a public health nurse — was discriminated against on the basis of creed when her request for a human rights exemption from PHSD’s COVID-19 vaccination policy was denied.
Arbitrator Robert Herman states that the nurse was, in fact, discriminated against.
The grievor, whose name has not been released, worked in health promotion for PHSD and was involved in communicating with the public about COVID-19 and COVID-19 vaccinations. She began as a contract employee with PHSD in October of 2020 and became a full-time employee as of September 2021. After the vaccination policy began at PHSD, the grievor filed for exemption on the basis of creed, which was denied. When she was not vaccinated by the deadline given, the grievor was placed on unpaid leave of absence and subsequently terminated for failure to get vaccinated, as required by the vaccine mandate.
Of the 556 employees of PHSD, only three refused vaccination, including the grievor. The basis of the grievor’s objection to the COVID-19 vaccines was her belief that makers used fetal cell lines in their research, and to receive one of the vaccines in these circumstances, according to the grievor, would be to condone, cooperate with, or participate in abortion. The Latin Mass of Roman Catholicism community (also called the Mater Dei Traditional Latin Mass Community), of which the grievor is a member, states that as matters of doctrine and belief, followers should oppose contraception and abortion, and support what they refer to as the "natural law."
The decision describes fetal cell lines as laboratory-grown cells that descend from cells taken from fetuses aborted in the 1970s and 1980s. These initial cells have since multiplied into many cells over the past four or five decades creating "fetal cell lines." Current fetal cell lines are thousands of generations removed from the original fetal tissue. They do not contain any tissue from a fetus. “The Moderna (Spikevax) and Pfizer (Comirnaty) vaccines used the fetal cell line HEK 293 in the very early stages of research and development, but was not used to make these vaccines.”
The grievor stated she expected her employer would issue a vaccine policy, and it would include a requirement to be vaccinated. As a result, she began inquiring about whether the available COVID-19 vaccines utilized fetal cell lines in late July 2021. This was about a month before PHSD issued its vaccine policy. The grievor learned that fetal cell lines had been used “in some manner and at some point,” in all the approved COVID-19 vaccines, although her knowledge of the details of the use of fetal cell tissue was limited.
She concluded that this would create a moral issue for her and she would have to decide “whether to have a job or a relationship with God.”
And per the decision, although at least two of the approved COVID-19 vaccines do not themselves contain or use fetal cell lines, the grievor did not fully acknowledge this. She testified, “perhaps she didn’t know this” and she “wasn’t sure if this was true.” But, the health unit believes 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.
PHSD conceded that the grievor is a devout Roman Catholic and that she is anti-abortion, and that being anti-abortion is part of her faith. But they also assert that her decision not to get vaccinated was unrelated to her faith and that her system of beliefs does not suggest or require that she not get one of the COVID-19 vaccines. PHSD submitted that her actions in virtually every other context were inconsistent with her claim that her faith requires her to decline to get vaccinated for the reasons she has asserted.
In fact, PHSD pointed to 13 “inconsistencies” in the grievor’s actions, including, amongst others: a lack of research into any other medicines that may contain fetal cell lines, including those that her family were taking; her skepticism about vaccines prior to any knowledge about the possible presence of fetal cell lines and a lack of research after; her vague responses regarding her views and testimony, and; the tendency to speak to the efficacy of the vaccines rather than her beliefs.
“The grievor 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,” stated PHSD.
PHSD also submitted she has both given and taken vaccines in the past that have connections to research using fetal cell lines, without investigating that fact.
The grievor stated she was aware that in general terms, medicines she may have taken in the past have used fetal cell lines but did not investigate how fetal cell lines had actually been used with respect to any of these medicines. The only medicines or drugs the grievor appears to have investigated are the COVID-19 vaccines.
As to why she had not conducted any such investigations with respect to medicines she and her family take, the grievor testified that there is always a “certain amount of evil in the world, and one can’t scrutinize everything.” She also stated that she is fine with giving others vaccines as she is not taking them into her own body. The grievor does not typically take medicines and so did not investigate them, and that “it is different when medicines have to be taken to assist in recovery from an illness,” she stated.
Despite the inconsistencies, said the arbitrator, he found that it is unlikely that the grievor has fabricated or simply “latched” on to a creed-based claim for an exemption in order to avoid getting vaccinated. “I consider it more likely that the grievor 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,” reads the decision, “and would in her mind amount to condonation of, cooperation with, or participation in abortion.” The arbitrator states that, defined broadly, “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 arbitrator also noted that the idea of religion should not be one that only protects aspects of religious belief or conduct that are objectively recognized by religious experts as being obligatory tenets or precepts of a particular religion.
He wrote in the decision that personal notions of religious belief, beyond what is “obligation, precept or commandment, custom or ritual” should be considered. Thus, “voluntary expressions of faith,” that is, not a prescribed ritual but a personal expression of religious belief, should be protected.
With respect to taking a COVID-19 vaccine, Latin Mass neither prohibits members from taking the vaccines nor requires that they do so. Rather, it requires that individual members make their own decision as to whether they will get vaccinated, consistent with the Latin Mass view that using contraception and abortion are against God’s will and the rules of the Church.
The arbitrator found that since the grievor holds a sincere belief that to get vaccinated would interfere with the exercise of her faith and her relationship with the divine, “the grievor is entitled to an exemption based on the provisions of the human rights code, on the grounds of creed.”
You can read the full decision here.
Jenny Lamothe is a reporter with Sudbury.com. She covers the diverse communities of Sudbury, especially the vulnerable or marginalized, including the Black, Indigenous, newcomer and Francophone communities, as well as 2SLGBTQ+ and issues of the downtown core.