Faced with the absence of clear and precise regulations and legislation, most employers are having to deal with a delicate problem: can we ask for proof of vaccination in the workplace or when hiring new staff? By the same token, can we require that employees be vaccinated?
While some employers may ask for it in a roundabout way (employees who have to travel or who have to meet customers in restaurants or other places requiring the vaccination passport), others hesitate to make it mandatory, for lack of case law in the matter.
This hot topic attracted a good number of participants at our Live Discussion which took place on November 26th, with the kind participation of Me Claude Gravel, a specialist in labour law.
A matter of rights
The issue of vaccine proof and the requirement for vaccination is complex and has yet to be decided by the courts. Indeed, even if the Federal Court rejected an injunction against compulsory vaccination for federal employees and the Superior Court of Quebec rejected the request for health workers, no law has been adopted in this area until now. Human rights and freedoms and the right to privacy are often mentioned, on the one hand, while the importance of collective well-being is emphasized, on the other hand.
The impact of an arbitration ruling
However, a new ruling could bring some changes. A few days ago, an arbitral award was made. It stipulates that the request for proof of vaccination is justified in view of the general well-being of Quebec citizens.
While this decision may influence several employers to adopt this type of measure, the consequences of refusing to disclose vaccination status or refusing vaccination are not specified.
In fact, the decision issued by the arbitrator, Me Nadeau, in no way discusses unpaid leave or dismissal in the event of non-compliance with an employer’s vaccination policy. This type of decision is more a matter for the courts.
However, the arbitrator emphasizes that while there is a breach of privacy, it is considered “inconsequential in comparison to the inconveniences—that are both major and recognized by current scientific findings—arising from the presence of an unvaccinated person in the workplace.”
It is also recommended that information related to immunization status not be processed by managers, but rather that this information be reported to a person in charge of the human resources department.
The example of the federal public service
When we see what’s going on in the federal public service, it begs the question of whether this will have an effect on businesses across the country. Indeed, after the announcement that unvaccinated employees or any employee refusing to reveal their vaccination status would be put on unpaid leave, and that they would not be able to benefit from employment insurance during this time, a vaccination rate of 98% was recorded.
According to Gilles Levasseur, professor of management and law at the University of Ottawa, it seems that some may have lied regarding their status, but there would not be many of them. When it comes to these cases, the government messaging is clear: a dismissal is more than likely.
Also, it is estimated that approximately 3,150 civil servants out of 268,000 have requested accommodations for vaccination either for medical or religious reasons. The application of these exceptional measures will not be easy to manage and could open the door to more debate, but for now, these exceptions remain rather rare.
How does this translate, concretely?
First and foremost, it’s important to understand that the vaccination requirement falls under the umbrella of employee work conditions. Thus, those already working for a company would not be legally obliged to submit to the requirement, except in certain specific cases, because it was not part of their employment contract when they were hired. However, when put into practice, the decision not to be vaccinated could have consequences for those who don’t want to comply.
When it comes to the hiring of new employees, the situation is different. Employers can require that recruits be vaccinated and include it in the terms and in a clause of the employment contract.
In the end, the employer can ask employees to provide their proof of vaccination since they have a duty to ensure the health and safety of all employees. This is where scientific findings and collective law come into play, as set out in Me Nadeau’s arbitral award.
Thus, the decision whether or not to require proof of vaccination and compulsory vaccination is closely linked to the employer’s risk management and can be summed up as follows: do you prefer knowing that you did everything in your power to ensure the health and safety of your employees or are you comfortable taking some level of risk?