A new decision from the Alberta Human Rights Commission ("AHRC") has confirmed the approach to be adopted with respect to religious accommodation requests in the era of COVID-19 public health measures. While the AHRC decision related specifically to a store's masking policy for customers, the decision contains useful guidance for employers as it relates to vaccination and other COVID-19 related workplace policies as well.
The decision, Pelletier v. 1226309 Alberta Ltd. o/a Community Natural Foods, 2021 AHRC 192, was issued on November 12, 2021. The Complainant was a long-time customer at the Respondent's store and alleged that he was medically exempt from wearing a mask and, secondly, that the mask infringed his religious beliefs. For purposes of this Bulletin, we have focused on the religious infringement claim.
The store policy required that all persons over the age of 2 years old entering the store wear a face mask, with no exceptions. The store offered online shopping, curbside pickup, home delivery, and a "personal shopper" feature for individuals who required an accommodation.
Confirmation of Previous Case Law
In addition to the new comments discussed below, the decision also affirms previous case law dealing with religious accommodations which would be a helpful refresher for employers and others considering how to respond to accommodation requests that they are receiving.
In the complaint, the Complainant alleged that his rights to freedom of religious; thought and conscience had been violated. The decision includes the helpful reminder that the protections contained in the Canadian Charter of Rights and Freedoms are broader than those in the Alberta Human Rights Act ("AHRA"). The AHRA, to which most employers in Alberta are required to comply, does not provide protection for political thought or freedom of conscience.
The Commission referred to the Supreme Court of Canada decision in Law Society of British Columbia v. Trinity Western University, which held that a court must "ensure that a presently asserted religious belief is in good faith, neither fictitious nor capricious, and that it is not an artifice". This AHRC decision is one of the first applying this legal framework to COVID-19 public health measures.
Disposition of Complaint
The Complainant raised a number of claims which were ultimately rejected by the Commission. He claimed that, as part of his faith, where government health provisions conflict with his personal conscientious convictions, he is to follow his personal convictions. He also claimed that the wearing of face masks encourages others to think that the wearing of face masks was safe. As he was not convinced that was true, it would not be a loving act towards his community, a requirement of his faith.
The Commission commented that the Complainant did not identify which religion or faith tradition he follows. He referenced passages from two Books of the Bible, but these passages did not appear to relate to a tenet or practice of not covering one's face. The Commission noted that while the legal test does not require adherence to a "mainstream" religious faith or to demonstrate that all persons of that faith share the same beliefs, the Complainant was required to explain how the belief about not wearing a mask was tied to a religion, how it was religious in nature, and/or how the requirement to cover his face restricts his ability to practice his religious faith.
At paragraph 36 of the decision, the Commission made the following comments:
"It is clear from all of the above that an individual must do more than identify a particular belief, claim that it is sincerely held, and claim that it is religious in nature. This is not sufficient under the Act. They must provide a sufficient objective basis to establish that the belief is a tenet of a religious faith (whether or not it is widely adopted by others of the faith), and that it is a fundamental or important part of expressing that faith".
The Complainant also claimed that the masking policy in question was unwarranted and ineffective. The Commission equated these claims to another recent decision of the BC Human Rights Tribunal, in which the Tribunal wrote at paragraph 11:
"The Worker's opinion that masks are ineffective is not a belief or practice protected from discrimination on the basis of religion. While the Worker states his belief that it dishonours God to cover his face absent a basis for doing so, the Worker's complaints, in essence, are about his disagreement with the reasons for the mask-wearing requirement..."
For these reasons, the complaint was dimissed.
Application to Vaccine and Other Policies
As expected, the Commission also concluded that the employee, customer and public health and safety are legitimate business purposes, and that masking policies (and therefore likely also vaccination and testing policies) are rationally connected to those objectives. Of course, the specific language and requirements of any such policies will be a significant factor considered by the Alberta Human Rights Commission and other decision-makers in determining these questions.
The Commissioner's comments in this decision may be of assistance to employers when assessing requests for accommodation from requirements of other COVID-19 related policies, including vaccination or testing policies.
Where individuals make requests for religious accommodation, they can be required to provide a sufficient objective basis to establish that the particular religious belief they are claiming is a tenet of a religious faith (as opposed to their personal belief or opinion) about the interpretation of particular passages of a religious text). Further, they can be required to show that the belief is a fundamental or important part of expressing that faith. Claims that a requirement conflicts with their personal conscientious convictions or that they are unwarranted or ineffective will not suffice.
As with other forms of accommodation, requests for accommodation on the basis of a sincerely held religious belief must be considered on a case-by-case basis. This Pelletier decision will in some cases, be of assistance to employers as they navigate requests for accommodation and consider what information they should require in order to make a decision on accepting or rejecting requests.
Disclaimer: This information is not provided as legal opinion or advice. For further information or assistance in responding to specific accommodation requests, please contact Danica McLellan or any of the other lawyers at Neuman Thompson.
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The information in this update is intended as general information and should not be relied on as legal advice.