Since every person has had the opportunity to be adequately vaccinated against COVID-19 in Canada, Canadian employers have been questioning their rights and obligations with respect to the implementation of a vaccination requirement against COVID-19 in order for their employees to have access to a workplace.
- What if an employer, as a service provider, is subject to its client's policies requiring that all persons accessing the client’s establishment be adequately vaccinated against COVID-19?
- Can the employer require its employees to disclose their vaccination status in order to comply with a third party's vaccination requirements?
- What if some employees are not vaccinated against COVID-19 and are therefore denied access to their workplace by a client?
These are the questions a grievance arbitrator had to answer for the first time in a decision issued on November 15, 2021.
Context of the Vaccine Requirement Imposed by Clients
Some unionized cleaning companies asked an adjudicator to render a declaratory judgment to answer these questions.
These companies have clients in a range of industries and enter into a service contract with them, which can be terminated by the client.
Some of these clients have policies in place that require their employees, suppliers and subcontractors to be properly vaccinated if they want to access the workplaces under their authority.
This requirement meant that cleaning companies had to collect the vaccination status of their employees who were assigned to these contracts.
Failure to comply with such a requirement is likely to lead to the termination of the service contract by the client and such termination also implies that all employees assigned to this contract will be laid off by the employer.
Objective of the Vaccine Requirement Imposed by the Clients
The clients' vaccination requirement was based on their occupational health and safety obligations.
In Quebec, the Act respecting occupational health and safety ("AOHS") is intended to eliminate at the source dangers to the health, safety and physical well-being of employees.
Under section 51 of the OHSA, an employer must take the necessary measures to protect the health and ensure the safety and physical well-being of employees. In the context of the pandemic, every employer must therefore use methods and techniques to identify and control the risks associated with the SARS-CoV-2 virus causing COVID-19 that may affect the health and safety of employees.
The employer’s clients have these obligations towards their own employees, but also towards the employees of their suppliers and subcontractors through section 51.1 of the OHSA, as they use them to provide services in their establishment.
An employee has correlative obligations under section 49 of the OHSA in that he must (1) take the necessary measures to ensure his health, safety or physical well-being, (2) see that he does not endanger the health, safety or physical well-being of other persons at or near his workplace, and (3) participate in the identification and elimination of risks of work accidents or occupational diseases at his workplace.
Sections 124 to 126 of the Canada Labour Code provide similar obligations for employers and employees in the federal government or in a federally regulated enterprise.
The health and safety objectives associated with the workplace vaccination requirement override employees' right to privacy and physical integrity
The Union challenged the right of employers to collect the vaccination status of their employees on the basis that such collection interfered with employees’ right to privacy under section 5 of the Charter of Human Rights and Freedoms (the "Charter") and their right to physical integrity under section 1. According to the Union, such an intrusion was not justified since clients did not have any legitimate health and safety objective.
In this declaratory grievance, the arbitrator decided that employers’ clients are entitled to impose a vaccination requirement on their employees and subcontractors because of their obligations under sections 51 and 51.1 of the OHSA. This obligation involves taking all necessary, humane and reasonable measures to protect the health and safety of workers in their establishment. The vaccination requirement adopted by the clients and applicable to its employees and subcontractors is justified in order to reduce the risks of spreading COVID-19.
The arbitrator also considered that since an unvaccinated employee represents a risk to himself (since he is potentially exposed to COVID-19 and to the most serious effects of the disease) as well as to other employees when he is in the workplace (since he is a more significant vector of transmission than a vaccinated employee), he is, in principle, in breach of his obligations under section 49 of the OHSA.
According to the arbitrator, although a vaccination requirement may infringe on the privacy and physical integrity of the affected employees, this infringement is justified under the Charter. Indeed, the Charter specifically provides that the rights and freedoms of an individual may be limited on the basis of public order and the general well-being of the citizens of Quebec, which is the case in a global pandemic situation.
The arbitrator found that the "prejudice" or "inconvenience" that may be suffered by unvaccinated employees in the workplace weighs much more heavily on the "general well-being" of other people who frequent the same place - and who, while being vaccinated, may be infected by the virus and suffer, as well as those around them, all of the resulting effects - than it does for employees who will be called upon to disclose a part of their private life, namely their vaccination status.
The arbitrator added that the presence or absence of government action in relation to vaccination is not the only standard for assessing the legitimacy of the clients' requirement. There is nothing that conditions the enforcement of obligations under the OHSA of an employer and an employee on prior government or legislative action. In other words, just because a government does not impose a vaccination requirement on its own employees, such as health care workers, does not mean that an employer could not justify adopting such a measure.
Employees who refuse to be vaccinated or to disclose such information must be administratively transferred to another client
The arbitrator considered that vaccination status had become a normal work requirement for employees assigned to contracts where there was a vaccination requirement.
The arbitrator considered that the collective agreement provides for a specific "administrative transfer" mechanism that applies, in this case, when an employee no longer meets a client's requirement. This mechanism, negotiated by the parties, allows a non-vaccinated employee to be transferred to another contract, which in this case is a client contract that does not impose a vaccination requirement. If such an administrative transfer cannot be made, the employee is placed on the recall list and does not receive his or her salary.
What's in it for employers?
This decision does not directly address the right of an employer to impose a policy regarding a vaccination requirement applicable to all of its employees, but rather how an employer should act when such a policy is implemented by one of its clients. However, since the arbitrator specified that the clients' vaccination requirement becomes the employers' requirement, i.e. the cleaning businesses in this case, the arbitrator's finding as to the legitimacy of such requirements should be successfully argued by employers who have implemented such a policy.
It is also interesting to note that the absence of a government order requiring mandatory vaccination or the absence of a government order requiring employees to have a vaccination passport (while the government subjects other individuals to it) does not mean that an employer cannot adopt a workplace vaccination policy.
The decision does not confirm an employer's right to place employees on unpaid leave, or to terminate them, in the event of a breach of a mandatory vaccination policy, and this issue will have to be determined by the courts.