Mandatory Vaccinations in the Workplace: Is it Legal?

Since the beginning of the vaccination process against COVID-19, many questions regarding labour and employment law have been raised. With the arrival of the vaccine passport in Québec and the inevitable fourth wave of cases approaching, the possibility for an employer to implement a mandatory vaccination policy in the workplace remains a hot topic. 

In Québec, the Public Health Act[1] allows the government or the responsible minister to impose mandatory vaccination on all or part of the population. However, it must be noted that, at least for the time being, the government has no intention of imposing vaccination on employees in general. Therefore, employers must ask themselves what position they will adopt concerning a subject that raises several issues.

Can an Employer Compel Employees to Get Vaccinated?

The answer would have been simple if it had been asked two years ago. Unfortunately, it has become more complex and is still subject to change depending on the epidemiological situation, possible government interventions and each company’s specific situation.

Firstly, employers have an obligation to protect the health and safety of their employees, which may result in the adoption of various internal policies. Employees are therefore entitled to a safe and healthy work environment.

Secondly, section 11 of the Civil Code of Québec provides for the right of each individual to give free and informed consent to their health care. In addition, the implementation of a mandatory vaccination policy is likely to infringe on the person’s rights to physical integrity and freedom, protected by the Charter of Human Rights and Freedoms (the "Charter").

Aside from these elements, the whole mechanism of protection against discrimination under the Charter could be invoked. For example, in some cases, an employee could claim that mandatory vaccination would be discriminatory if they can show that they are unlawfully discriminated against based on either disability or religion. Reasonable accommodation could then be required. The employer could also justify the mandatory vaccination protocol by demonstrating that it is a bona fide occupational requirement based on the case’s specific circumstances.

In fact, the possibility of an employer forcing an employee to be vaccinated is not being considered. No one is promoting that. Instead, we use the term "to compel" in the sense that, while not forcing vaccination, the employer imposes certain types of measures on employees who choose not to be vaccinated. The real question is, therefore, what measures an employer can take for such employees.

To date, the Québec courts have not heard a case involving a mandatory vaccination policy in the context of the current pandemic. However, an arbitration decision rendered in 2008 is of interest. In the CSSS Rimouski-Neigette[2] case, a nurse assigned to the care of residents refused to be vaccinated against influenza and to take prophylaxis (Tamiflu) for personal reasons. Two grievances were filed with an arbitrator to contest the employee's withdrawal from work following her refusal and claim the corresponding salary loss. In denying the grievances, the arbitrator noted that the employer had not forced the employee to be vaccinated but that she had to assume her choice - and the consequences - in this case, a loss of three days' pay. The following comments by Arbitrator Morin are particularly relevant:

• [Translation] [85] the Québec Charter sets out many rights and freedoms for citizens that apply in the workplace. However, the CHARTER is not an all-risk insurance contract allowing a person, in this case, an employee of a CHSLD, to receive compensation for being removed from the workplace when she refused to be vaccinated and receive prophylaxis, it was her choice and her right. The evidence did not reveal any medical counter-indication to the vaccination and prophylaxis, nor any religious impediment. As far as the CHARTER is concerned, she must live with her choice, and it is not in this document of quasi-constitutional value that she can rely on to obtain the remuneration of the two days of lost work.[3]
  (Our bold print)

Nevertheless, referring to the Oakes test to justify a Charter infringement, the arbitrator concluded that the Charter had been respected in this case. Under this test, it must be shown that the objective is sufficiently important to justify an infringement of the Charter and that the chosen means are reasonable, which implies, among other things, that they must interfere as little as possible with the rights or freedoms in question. In CSSS Rimouski-Neigette, the arbitrator confirmed the importance of the pursued objective by the imposition of such measures and concluded from evidence that there was severe risks to the elderly clientele that care would be provided by an unvaccinated employee, at the time of an influenza outbreak, justifying the reasonableness of the intervention protocol and its compliance with the Charter.

The Superior Court agreed with the employer and dismissed the appeal for judicial review filed by the union. Interestingly, the Court reminded that there was no infringement of a fundamental right by not imposing mandatory vaccination. The consequences experienced by the unvaccinated employee were "an economic constraint and not an infringement of a fundamental right provided for in the Charters". Yet the Court concluded that an analysis under the Oakes test was not necessary, but that if it were, it was consistent with the arbitrator's reasoning.

In other Canadian provinces, the courts have sometimes been called upon to rule on the legality of "vaccine or mask" policies as a means of preventing the transmission of seasonal influenza in health care organizations. Although these courts have not reached a consensus on the validity of this type of policy, they all emphasize the importance of scientific evidence to justify the measure, as well as the need to clearly inform employees that they are subject to administrative or disciplinary measures if they refuse to comply with the policy. Compliance with the collective agreement is also part of their analysis for unionized employers.

Whether or not the Charter is applicable, an employer wishing to adopt a policy imposing various measures on unvaccinated employees must ensure that it can justify its reasonability, in the event of a contestation, by taking into account the specific circumstances of the workplace. Employers have an obligation under the Act respecting occupational health and safety to protect the health and safety of their workers. If workers are in contact with clients, the rights of such clients must also be considered. The employer will have to examine the specific risks of his workplace and adopt concrete actions to protect its employees and clientele, while considering the public health guidelines. The physical distance, the presence of physical barriers, the duration of contact, the type of clientele, the required travel, etc., should be taken into account.

What If the Government Imposed Mandatory Vaccination?

We note that an important turnaround is taking place, as the various levels of government demonstrate a desire to impose vaccination on certain employees.

As noted earlier, in Québec, the Public Health Act provides that during a state of a health emergency, the government or the responsible minister may order the mandatory vaccination of all or part of the population against a contagious disease that poses a serious threat to public health.  Such an order would resolve all questions that arise. Instead, we are confronted with particular situations where, for example, the vaccination passport is required for customers wishing to visit a restaurant, but not for the employees of that same restaurant. Therefore, the government has decided to limit the passport requirement to these clients but not to these employees.

For the time being, at least, the government remains reluctant to exercise this power over the general population in the context of the COVID-19 pandemic but intends to exercise it over health care workers. In April 2021, the Minister of Health and Social Services adopted Ministerial Order 2021-024 requiring employees of health and social services institutions to provide proof of vaccination, failing which they would be required to undergo a minimum of three COVID-19 tests per week and provide the results to their employer. Staff who refused to comply with this directive would have to be reassigned or put on leave without pay when reassignment was not possible. However, the changing public health situation led the government to review its policy. As a result, as of October 15, 2021, health and social services workers who have close contact with patients, and those who are in contact with these workers, will have to be doubly vaccinated. Otherwise, these employees will be reassigned to other duties, if possible. If such reassignment is not possible or if the worker refuses, no compensation will be paid.

On the federal side, the prime minister has announced his intention to require all public servants and employees of federally regulated businesses to be vaccinated. However, the details of such a measure have not been disclosed.

Which Options Are Available to Employers?

Indeed, employers are entitled to demand clear guidelines from the various levels of government on any imposition of vaccination on certain categories of employees, and as quickly as possible.

Otherwise, the enforcement of vaccination by an employer, not subject to such guidelines, could be contested before the courts. The outcome will certainly depend on the evidence that the concerned employer will have to demonstrate, depending on the specific circumstances of its business.

Without making vaccination mandatory, an employer can certainly consider different measures for non-vaccinated employees. These measures will depend on each workplace and may include, for instance, allowing only vaccinated employees to enter the workplace, denying non-vaccinated employees access to certain areas (cafeterias, conference rooms, etc.), reassigning jobs, modifying duties, imposing specific health and distancing measures, requiring regular testing, or a combination of these measures. An unpaid withdrawal from work may also be considered, as mentioned earlier. Justification should be ensured, considering the available evidence and the specific requirements of the occupations involved.

Finally, in addition to vaccination, other measures should be promoted by employers. In particular, they must maintain distancing and wear a quality mask in the workplace. In a notice dated August 3, 2021, the INSPQ still recommends keeping a distance of two metres in the workplace. When maintaining this distance is not possible, the INSPQ recommends installing physical barriers or wearing a quality mask. Depending on the assessment of the situation, these are the minimum measures that employers must put in place in order to respect their obligation to protect the health, safety and physical integrity of workers.[4].

What Do Employers Need to Remember?

The Charter is not ironclad protection for employees who refuse to be vaccinated because of their personal choice. The rights and obligations of others - employers, co-workers, clients, citizens - must be considered and protected. While employees may choose not to be vaccinated, they must also bear the consequences of a harmful choice to others.

These consequences may be set out in a corporate written statement if they are justified by the specific circumstances of the business and even the specific occupations involved.  However, it is important that the content of the policy be clearly communicated to employees so that they are aware that, while they are free to choose whether or not to get vaccinated, refusal to be vaccinated or to provide proof of vaccination to the employer may justify the imposition of administrative measures. The content of the policy should be reasonable, and its application should be consistent.

Without mandatory vaccination, an employer could attempt to facilitate voluntary immunization by conducting a workplace vaccination campaign. It could also provide incentives to motivate employees to receive the COVID-19 vaccination and reward those who provide proof of vaccination. It should be noted that the collection of information by an employer in connection with the immunization status of its employees constitutes a collection of personal and confidential information that must be handled in accordance with the principles in this regard.

Finally, the announcement of the arrival of the vaccine passport on September 1st, could also motivate many to receive their double vaccination in order to avoid restrictions related to non-essential activities and services. However, it remains to be seen whether the Québec government will make vaccination mandatory not only for clients but also for its establishments' employees or even for other categories of employees.

If you have any questions regarding the introduction of mandatory vaccination in the workplace, we invite you to contact our labour and employment law team.

 

[1] RLRQ. c. S-2.2, art. 123. [2] Syndicat des professionnelles en soins infirmiers et cardio-respiratoires de Rimouski (FIQ) et CSSS Rimouski-Neigette, D.T.E. 2008T-454 (T.A.). [3] Id., par. 85. [4] Act respecting occupational health and safety, RLRQ, c. S-2.1, art. 51.