from the National Office of The United Church of Canada
With restrictions easing across the country, the United Church sought the advice of outside legal counsel for communities of faith. Excerpts from the legal opinion are provided below. Please note it is based on policies currently in place and the assessment of them as reasonable.
Assuming that the original rule issued by the Church or congregation concerning masking or proof of vaccination status was reasonable, there is nothing about the removal of the various provincial mandates that would make it improper or illegal to continue with a rule that required masking or proof of vaccination status. In fact, pursuant to relevant Occupational Health and Safety legislation,
employers have a duty to take every precaution reasonable in the circumstances to keep workers safe.
For at least some time, we suspect that there is a good argument that a continuation of restrictions, such as masking, (and possibly a vaccination policy, depending on its requirements) is reasonable.
Please note these considerations will depend on the actual vaccination policy that has been implemented, as it could vary. COVID-19 restrictions implemented by congregations and other measures, such as masking, are generally founded on obligations pursuant to relevant Occupational Health and Safety legislation. Accordingly, the Church (and its congregations) continue to be subject to their obligations pursuant to the relevant Occupational Health and Safety legislation in each applicable province…
Any vaccination policies that are currently in place will also have specific considerations, as they often require the disclosure of vaccination status.
These policies will need to be reasonably balanced. Any collection of vaccination status should only be done as part of a reasonable vaccination program that appropriately balances the rights to privacy and bodily integrity of its employee’s and congregant’s legitimate interests and obligations. To continue with a vaccination policy, the congregation would need to ultimately determine that it is reasonable in the circumstances. This will be a contextual analysis that balances the privacy interests of the employees and/or congregants with the actual policy.
Relying on applicable Occupational Health and Safety legislation requires that current measures be supported by current and up to date science in order to support that the policy makes the workplace “safe” and is a “reasonable precaution”, in the words of the Ontario statute vaccination policy requirements…
Depending on how the pandemic and scientific evidence continues to unfold, it may be more challenging to assert they are required though. Masking or other COVID-19 requirements follow a similar analysis. The congregation or Church should be considering whether such requirements are necessary to ensure a safe workplace.
Requiring masking or sanitization are certainly less intrusive measures than requesting vaccination status, so can generally be more easily justified…
We would caution that the requirement to mask should apply equally to all employees and congregants, regardless of their vaccination status… The above noted conclusions could change as scientific evidence and public health guidance evolve. Having said that, the Church can currently proceed with reasonable restrictions. Without a detailed review of vaccination policies/practices in place, it is challenging to opine on whether specific vaccination related restrictions would remain reasonable. However, masking/sanitizing would be a reasonable restriction as of the date of this opinion.
Congregations are reminded to continue to ask people to stay home if unwell or if they have tested positive for COVID.