Arbitrator rules London’s Fanshawe College discriminated against remote working professor placed on unpaid leave for refusing COVID-19 vaccine; orders compensation

For the second time, Fanshawe College in London, Ontario, has been ordered to compensate an employee placed on unpaid leave under its COVID-19 vaccine mandate.

In the latest case, Arbitrator Norman Jesin ruled in favour of Michael Kennelly, a professor at Fanshawe’s London Campus, who challenged the college’s refusal to grant him a religious exemption from its vaccine policy. The Ontario Public Service Employees Union (OPSEU), representing Kennelly, contended that the college’s refusal violated his rights under both the Ontario Human Rights Code and the terms of his employment contract.

Fanshawe College, one of Ontario's largest post-secondary institutions, implemented a COVID-19 vaccination policy in September 2021. This policy, aligned with provincial health mandates, required all students, employees, and visitors attending campus to be fully vaccinated by November 5, 2021, or to have an approved medical or religious exemption. In October 2021, Kennelly submitted a request for a creed-based exemption, citing his evangelical Christian beliefs. He argued that these beliefs precluded him from taking any vaccine associated with fetal cell lines used in research or production.

Kennelly’s application included statements from his religious leader and detailed his long-standing faith commitments. However, the college denied his request on the basis that his beliefs did not meet the requirements for a creed-based exemption under the policy. As a result of this denial, Kennelly was placed on unpaid leave starting in January 2022, despite his duties being fully remote for that semester. The college's action effectively barred him from teaching and, according to OPSEU, resulted in significant professional and financial harm.

The arbitrator’s decision, delivered on October 30, 2024, sided with Kennelly. Jesin concluded that Fanshawe College had misapplied its policy by failing to account for the subjective aspect of Kennelly’s faith-based objections. He referenced similar rulings, including Public Health Sudbury & Districts v. Ontario Nurses’ Association, which underscored the need for employers to evaluate religious accommodation requests with an understanding of personal belief. Jesin ruled that the college's actions amounted to discrimination, stating that Fanshawe had “failed to accommodate the Grievor’s creed.” This violated Section 5 of the Ontario Human Rights Code and Article 4 of the collective agreement.

Jesin’s decision includes a declaration that Kennelly’s rights were infringed, entitling him to compensation for the time he was on unpaid leave. This compensation will cover lost earnings, seniority, service credits, and any other benefits he would have accumulated had he remained employed. While the exact amount and terms of the compensation are still under discussion, the arbitrator has retained authority to ensure the implementation of the award. The ruling does not indicate whether Kennelly returned to work for the college.

In a related decision made back in February 2024, Arbitrator Larry Steinberg ruled in favour of Andrew Wing, a Fanshawe College professor who was placed on unpaid leave despite working entirely remotely. Wing, who teaches in the Technical Systems Analysis program, chose not to get vaccinated, citing personal reasons rather than religious or medical grounds. He did not seek an exemption under the Ontario Human Rights Code, and Fanshawe’s policy mandated that all employees be vaccinated, regardless of whether they worked on campus or remotely.

Steinberg ruled that Fanshawe’s enforcement of its vaccine policy was “not reasonable” given Wing’s fully remote position. He noted that Wing had no contact with students or staff on campus. His decision ordered that Wing be compensated for his unpaid leave, as he was able to fulfill his duties from home without posing a health risk to others.