First Quebec decisions on mandatory vaccination in the workplace

Until very recently, the courts have not had the opportunity to address various issues raised by mandatory vaccination policies in Quebec, an important topic for many employers. However, two recent decisions provide some clarity.  

Request for proof of vaccination from a third party

In the first decision¹, several employers providing cleaning services for a wide range customers had been informed by some customers that they would soon require all employees deployed to their buildings to be adequately vaccinated. Arbitrator Denis Nadeau therefore had to address the following issues:

• employers’ right to collect personal information relating to their employees’ vaccination status in response to customer demands; and
• the impact on employees who could not attest to their vaccination status due to their refusal to be adequately vaccinated in light of the applicable collective agreement. Note that the parties had agreed to exclude situations in which the employee’s refusal to be vaccinated was based on religious reasons or disability.

Two central scientific findings had been acknowledged by all parties to the case: compared to a vaccinated employee, an unvaccinated employee who contracts COVID-19 is likely to suffer the most serious consequences of COVID-19 and, having a higher viral load, is more likely to transmit the virus. 

Regarding the first issue, the arbitrator considered that although the obligation to disclose one’s vaccination status constitutes a violation of the right to privacy and possibly the physical integrity of the employees concerned, it is justified under section 9.1 of the Charter of Human Rights and Freedoms (Charter). Upon analysis, the arbitrator points out that such a violation is inconsequential compared to the major disadvantages, recognized by current scientific findings, from the presence of unvaccinated individuals in the workplace (para. 77). According to him, customers and, by extension, employers, who endorse their objectives, are justified in requiring such proof, particularly because of their obligations regarding workers’ health and safety under the Act respecting occupational health and safety, the Civil Code of Québec and the Charter. 

The arbitrator specified that employers are justified in requesting disclosure of the vaccination status of employees assigned only to a building for which a customer has imposed this requirement. He also specified that this information, in the form of the VaxiCode or even in paper form, should be collected by human resources representatives rather than by employees’ supervisors. Finally, the arbitrator invited employers to avoid providing their customers with a list of the names of their employees and their corresponding vaccination status, as customers will have to accept the employers’ declaration attesting to the fact that all employees assigned to their buildings are adequately vaccinated.

Regarding the second issue, the arbitrator emphasized that, in light of the collective agreement between the parties, employees who did not comply with the vaccination requirement should be subject to an administrative transfer to the premises of customers who did not impose this requirement, rather than being laid off. However, he specifies that if all of the employers' customers were to impose this requirement, non-vaccinated employees could not be transferred and would be legitimately dismissed on account of the ensuing lack of work.

Distinction between mandatory vaccination and forced vaccination 

In the second decision², the Superior Court dismissed the application for a stay of the government Order-in-Council requiring health and social services workers to provide proof of double vaccination on pain of unpaid suspension, even though the government had already announced it no longer intended to require it. This decision deals with a very specific context and the court had only limited evidence at the stage of the application for a stay. However, we would like to highlight some key points from the decision: 

• Contrary to the Public Health Protection Act, which allows for forced vaccination in a health emergency, the Order-in-Council did not force health and social services workers to be vaccinated against their will. Their personal inviolability therefore remained intact and, without proof of double vaccination, they would have been suspended without pay. At the stay stage, this does not meet the test of irreparable harm.
• At the stage of the application for a stay, the government is presumed to have adopted the Order-in-Council lawfully and in the public interest, and the plaintiffs were not able to reverse this presumption. The court specified that, although the plaintiffs do not agree with the measure taken by the government under the Order-in-Council, it is not for the court, either at this stage or on the merits, to substitute its opinion for that of the government. It will be up to the voters to judge the appropriateness of the government’s decisions made in response to the emergency health situation. 

Conclusion

In the coming months, we are likely to see an increasing number of rulings on mandatory vaccination and requests to collect personal information in the workplace. As shown by these two decisions, Quebec decision-makers will have to review extensive evidence and deal with the rights and obligations of all stakeholders, including employers’ obligations to protect the health and safety of their employees. Should the trend continue, one can hope for clear decisions confirming the employer's right to require vaccination.

We encourage you to read our legal update on three recent Ontario arbitration decisions that reviewed the validity of mandatory vaccination policies in light of applicable collective agreements.