Inquiries Into Employee Religious Beliefs Should Not Be an Inquisition

Written by Daniel Standing LL.B., Editor, First Reference

Many employers implemented COVID-19 policies requiring employees to become vaccinated or face negative work-related outcomes like unpaid leaves or suspensions. Apart from that point of commonality, different approaches were taken to employees’ requests for exemptions and those that were made on the basis of religion proved difficult to navigate. In one case, B.C. Rapid Transit Co. v Canadian Union of Public Employees, Local 7000 (Morzhakov Grievance), [2022] B.C.C.A.A.A. No. 114, Arbitrator Randall Noonan overturned the employer’s rejection of one such request because, he said, its process went too far and was akin to a religious inquisition, something the Supreme Court warned against.

Background

The employee held the position of Monitor, Asset Integration for a rapid transit system that required him to work mostly outdoors on bridges and in tunnels, observing and monitoring building projects on the employer’s property. Only occasionally would his work bring him near other people.

The employee was brought up in Ukraine when it was part of the Soviet Union. He adhered to the Ukrainian Orthodox Church and believed that his body was sacred and shouldn’t be altered. He was taught to never smoke or drink (he preferred water with lemon) and he had never received an injection. In what he described as a moment of weakness when he “lost sense of what was going on,” he took prescribed medications for pain and insomnia after a car crash in 2018. He believed that in times of illness, the path to healing was through prayer to God.

After the employer implemented a mandatory vaccination policy, the employee raised his religious beliefs and asked the employer what he had to do to get an exemption. In response, he received a sort of questionnaire seeking details about his beliefs, which he answered, followed by another questionnaire inquiring about his history of medications and medical treatments. The employer suggested that a note from his physician would support his answers.

Again, the employee complied. He answered everything asked of him and provided a note from his doctor confirming what he had told the employer.

Still, the employer didn’t give in. It thanked him for the information but refused the exemption for two reasons. First, because the employee had received medications in the past, and second, because the employee appeared to be exercising his personal choice or preference not to be vaccinated rather than a requirement of his religion.

The employee’s union filed a grievance on human rights grounds.

The arbitrator’s decision

The decision starts by outlining the prohibition against discrimination in employment based on religion found in British Columbia’s Human Rights Code and the parties’ collective agreement.

To interpret how the prohibition applies, the arbitrator turned to the Supreme Court of Canada’s decision in Amselem, considered by both parties to be the leading authority. As the court explained in that case, religion is a deeply personal matter and individuals should be free to hold and exercise their beliefs so long as they don’t tread on the rights of others. These beliefs are so personal, it said, that it’s not appropriate for courts to weigh their validity by comparing them to what other members of the religion believe. Because of this, the court said it’s not appropriate for employers to extensively investigate a claimant’s sincerity; instead, such inquiries “must be as limited as possible.”

According to the arbitrator, this is where the employer went wrong. After establishing the sincerity of the employee’s belief, the employer took it too far by asking about past medication use and in searching for contradictions in the employee’s answers. Instead, he said the employer should have looked at the situation as a human rights matter and kept its questions to a minimum. The employer’s disbelief of the employee didn’t entitle it to do what it did.

The arbitrator’s findings opened the door to an accommodation of the employee’s beliefs. Rather than impose it on the parties, the arbitrator retained jurisdiction and remitted the matter to the parties to agree on an accommodation and the human rights damages to be paid.

Key takeaway

This case tells employers that after gauging the sincerity of an employee’s religious belief, their inquiries should end, and they should move on to consider how best to accommodate the employee. Inquiries that are too searching or that turn into quests for contradictions and inconsistencies in an employee’s past are dangerous avenues for an employer to go down and risk becoming an unjustified “religious inquisition,” paving the way to a damages award for the employee.

Start the discussion!

Leave a Reply

(Your email address will not be published or distributed)