In this post, we look at what the existing authority in the province of Quebec and Canada tells us about the legality of mandatory vaccination policies, which has long been a controversial subject. (Click here for a post that considers these issues in other parts of Canada). In a future post, we will look at some of the emerging decisions on COVID 19-related testing and screening policies.
The balance of existing authority suggests that the enforceability of mandatory vaccination policies is partly dependent on the type of workplace in which they are applied:
- In healthcare (hospitals and long-term care homes) it is likely that an appropriately drafted and implemented mandatory COVID-19 vaccination policy would be upheld as both necessary and reasonable.
- In other “congregate work settings” where there is a demonstrated and heightened safety risk from COVID-19 transmission (e.g., meat packing plants, warehouses, construction), such a policy may also be upheld.
- In other contexts, where the existing evidence of the risk of transmission is less clear and may be mitigated by workplace measures less intrusive than vaccination (such as masks, physical barriers/distance, and testing), or by working from home, the enforceability of a mandatory vaccination policy is similarly less clear.
In the unionized context, the Supreme Court of Canada has endorsed a balancing-of-interests approach to the unilateral exercise of management rights to ensure reasonable safety in the workplace.1 Accordingly, a mandatory vaccination policy may be considered both necessary and reasonable if the need for the rule outweighs the harmful impact on employee rights. For any employer considering the implementation of a mandatory COVID-19 vaccination policy, it would be crucial to design a policy that provides employees with a reasonable, non-disciplinary alternative to vaccination, such as working from home (where possible) or an unpaid leave of absence (where working from home is not possible), and to accommodate employees who cannot get vaccinated for medical reasons or because of protected grounds for discrimination under human rights legislation. A mandatory COVID-19 vaccination policy should not be a blanket policy. A policy that distinguishes between high risk and lower risk roles, akin to safety-sensitive and non-safety-sensitive roles in the drug and alcohol testing context, would likely enhance a policy's justification.
It should be noted that certain public sector employers in provinces outside of Quebec have statutory authority to require their employees to be vaccinated against specific diseases (similar legislation does not exist in Quebec).2 However, private sector employers, including in Quebec, have no statutory authority at this time to require their employees to get vaccinated against COVID-19, and provincial governments have so far indicated that COVID-19 vaccination will not be made mandatory. That said, pursuant to the Public Health Act3, the Government of Quebec may, during a public health emergency, order compulsory vaccination of all or part of the population against any contagious disease which is seriously threatening the health of the population. Should the Government of Quebec issue such an order, and subject to their duty to accommodate employees refusing the vaccine on grounds protected by the Quebec Charter of Human Rights and Freedoms4 (the “Charter”), Quebec employers will have statutory grounds to require their employees to be vaccinated against COVID-19 in order to access the workplace. As of the date of publication, there is no such order in force in Quebec.
Mandatory Workplace Vaccination: Past Rulings
Similar to other provinces, Quebec employers have a duty to protect the health and safety of their employees under the Civil Code of Quebec and the Quebec Occupational Health and Safety Act.5
To fulfill this duty, some hospital employers have previously introduced mandatory vaccination policies to limit the spread of influenza in the workplace, with most (but not all) such policies upheld.
The limits to an employer's ability to implement mandatory flu vaccination policies have generally only been addressed in arbitration cases in the unionized context, thus the applicable collective agreement will often have an impact on what is permissible in the specific circumstances. In addition, given that arbitration decisions are not binding on other arbitrators or courts, it is uncertain how much weight these past cases will have on the question of whether employers can implement a mandatory COVID-19 vaccination policy, especially in a non-union setting.
Moreover, a vaccination requirement imposed as a result of an ongoing pandemic or an active outbreak of a highly infectious disease is likely to be treated differently from one imposed on employees in ordinary circumstances, such as the influenza virus.
Employers bear the burden to justify that a unilaterally implemented policy is reasonable on health and safety grounds.6 Generally, the most significant hurdle for employers is demonstrating whether the policy is reasonable, as this inquiry goes to the root of why the policy is required and is balanced against employee rights. If the need for the policy is greater than the harmful impact on employees, the policy will be reasonable.
For example, in Syndicat des professionnelles en soins infirmiers et cardio-respiratoires de Rimouski (FIQ) et CSSS Rimouski-Neigette7, a nurse working at a nursing home and long-term care facility during a flu outbreak in the workplace was placed on unpaid leave for 48 hours, pursuant to the employer's policy, due to her refusal to be vaccinated against influenza for personal reasons unrelated to grounds of discrimination protected by the Charter.8
The arbitrator held that (i) the employer respected the nurse's freedom to refuse to be vaccinated and that she must therefore deal with consequences of such refusal as set out in the employer's policy, and (ii) prohibiting an unvaccinated employee from entering the workplace and placing her on a 48-hour unpaid leave of absence was justified and reasonable, due to the risks arising from vulnerable nursing home residents interacting with non-vaccinated caregivers during a flu outbreak. For clarity, reassignment of the employee was not possible in this case. On judicial review, the Superior Court of Québec upheld the arbitrator's decision.9
While labour arbitrators in Alberta and British Columbia have also upheld mandatory vaccinate-or-mask policies (VOM policies) imposed by hospital employers to combat seasonal influenza, arbitration decisions in Ontario have gone the other way.10 For example, in an Ontario decision, a VOM policy that had been put in place for flu season was challenged and struck down as being unreasonable because there was insufficient evidence the policy protected the workers and patients from harm. The arbitrator also determined that the VOM policy pressured employees to get vaccinations or face the stigma associated with wearing a mask and being identified as a non-vaccinated employee. Given that we now have significant evidence of the effectiveness of masks in reducing transmission of COVID-19, evidence of asymptomatic transmission, and vaccines reported to be highly effective, it is reasonable to conclude that this decision would be given little or no weight in the consideration of a mandatory requirement for COVID-19 vaccination.
In light of the foregoing, where an employer unilaterally imposes a policy, the criteria to determine whether the policy is reasonable and enforceable are as follows:
- It (the policy) must not be unreasonable.
- It must not be inconsistent with the terms of employment for non-unionized employees or collective agreement for unionized employees.
- It must be clear and unequivocal.
- It must be brought to the attention of the employee affected before the employer can act on it.
- The employee concerned must have been notified that a breach of such rule could result in their discharge if the rule is used as a foundation for discharge.
- Such rule should have been consistently enforced by the employer from the time it was introduced.11
In the non-union setting, employers will need to be concerned with three additional issues: constructive dismissal, human rights and privacy legislation.
First, if the mandatory vaccination policy results in a unilateral substantial change to a fundamental term of employment, an affected employee would be entitled to take the position that they have been constructively dismissed. In such circumstances, the employer could be exposed to significant termination costs. A mandatory vaccination policy may be more likely to result in a constructive dismissal where the repercussions for the employee who has decided not to be vaccinated (or refuses to disclose whether they have been vaccinated) are termination for cause or a forced leave of absence without pay.
Second, a mandatory COVID-19 vaccination policy may be found discriminatory if it does not include exemptions for protected grounds under the Charter, such as religious reasons or medical reasons (i.e., immunocompromised persons or those allergic to the vaccine). That said, in some circumstances an employer may be able to defend an otherwise discriminatory mandatory vaccination policy on the basis that it is a bona fide occupational requirement. However, the employer would need to show the purpose of the policy is rationally connected to the employee's performance of their job, it was adopted in an honest and good faith belief that it is necessary to fulfil that work-related purpose, and that the policy is reasonably necessary to accomplish such purpose. Part of this analysis looks at whether a policy can achieve its purpose through less discriminatory means. For example, a policy may be unreasonable and determined not to be a bona fide occupational requirement if it results in an employee's termination when alternative measures may suffice, such as physical distancing, use of protective gear, barriers or working from home.
Third, employers regulated by privacy legislation such as the Quebec Act respecting the protection of personal information in the private sector12 must ensure they are only collecting, using or disclosing personal information (such as whether an individual has been vaccinated) for reasonable purposes. It may not be reasonable to request from all employees whether they have been vaccinated if some employees are in positions that will not require mandatory vaccination (i.e., full-time work from home).
COVID-19 presents unique circumstances and issues with very limited precedents on the important question of whether an employer can adopt and implement a policy that requires its employees to be vaccinated against COVID-19.
Given the very limited availability of COVID-19 vaccines in the early stages of the vaccination campaign, it is likely premature for most employers to implement a mandatory COVID-19 vaccination policy at this time. However, once vaccines become more widely available, and provincial restrictions less onerous, the need for a properly drafted and implemented policy for some employers will become more pressing. Early movers can expect challenges to mandatory vaccination policies, particularly in the unionized context, which will make it even more important to have a carefully drafted policy.
Finally, even if employers lack legal grounds to require its employees to be vaccinated against COVID-19, they may eventually facilitate and promote the vaccination of their employees by organizing informational and vaccination campaigns as is current common practice with the flu vaccine.
1Irving Pulp & Paper Ltd. v CEP, 2013 SCC 34 at para. 4.
2 For example, paramedics and other medical workers under the Ambulance Act (Ontario), and certain childcare workers under the Child Care and Early Years Act, 2014 (Ontario).
3Public Health Act, CQLR c S-2.2, s. 123 (1).
4Charter of Human Rights and Freedoms, RLRQ c. C-12,. ss.10 et 10.1.
5Civil Code of Québec, CQLR c. CCQ-1991, s. 2087; Québec Occupational Health and Safety Act, CQLR c. s-2.1, ss. 9 and 51.
7Syndicat des professionnelles en soins infirmiers et cardio-respiratoires de Rimouski (FIQ) c. CSSS Rimouski-Neigette (grief syndical et Micheline Bernier), D.T.E. 2008T-454.
8Charter of Human Rights and Freedoms,supra note 4.
9Syndicat des professionnelles en soins infirmiers et cardio-respiratoires de Rimouski (FIQ) c. Morin, 2009 QCCS 2833.
10Chinook Health Region v UNA, Local 120, 2002 CarswellAlta 1847 (Alta. Arb.); Interior Health Authority v BCNU, 2006 CarswellBC 3377 (BC Arb.); Re St Michael's Hospital and ONA, 2018 CarswellOnt 14889 (Ont. Arb.); Re Sault Area Hospital and Ontario Hospital Assn. (Vaccinate or Mask), 2015 CarswellOnt 13915 (Ont. Arb.).
11Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co., 1965 CarswellOnt 618 (Ont. Arb.) at para 34, paraphrased here.
12Act respecting the protection of personal information in the private sector, c. P-39.
Originally Published by Stikeman Elliot, February 2021
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.