Do Quebec employers have the right to command employees to disclose their vaccination status? A grievance arbitrator has just provided part of the response to this question in an arbitration ruling rendered on November 15, 2021.
Several companies who provide cleaning services asked the grievance arbitrator, Me Denis Nadeau, to rule on the legality of ordering their employees to provide proof of vaccination, as a number of third-party clients had requested such evidence as a condition for entering their premises.
The arbitrator was also asked to rule on the possible outcomes of this mandatory requirement on the management-employee relationship, in particular with respect to their applicable collective agreements.
Arguments of the parties
The Union challenged the right of employers to collect information on the vaccination status of employees, alleging that such a collection would violate their right to privacy as well their right to inviolability of their person, both guaranteed by the Charter of Human Rights and Freedoms (the “Charter”).
In the Union’s submission, this infringement was not justified by the legitimate objective of protecting health and security.
The Employers, on the other hand, alleged that the simple collection of the vaccination status did not significantly violate the privacy of the employees.
Considering that the demand for proof of vaccination originated from clients, the Employers argued that it was not their responsibility to justify any alleged violation of fundamental rights. The arbitrator’s role within this context was to examine whether the information requested was necessary and relevant in order to carry out certain job duties on the premises of clients’ establishments.
Finally, they argued that if there was any violation, it was justifiable with respect to “democratic values, state laicity, public order and the general well-being of the citizens of Québec” as provided for in section 9.1 of the Charter.
I. Proof of vaccination requirement
It is important to note that the arbitrator determined that the employer cannot limit itself to invoking the demands of its clients in order to justify a violation of fundamental rights of its employees. By importing the working conditions demanded by a third party and applying it them to its employees, the employer finds himself sharing those demands and must, therefore, be able to justify them in terms of the applicable law.
Moreover, the arbitrator did not accept the employer’s claim that this collection of information did not violate the right to privacy. On the contrary, he confirmed the principle already established by certain courts to the effect that asking people about their vaccination status is an invasion of privacy and violates this fundamental right, even if this infringement is considered rather minimal.
However, while the Charter protects the fundamental human rights of individuals, it also states that these rights “are exercised with respect for democratic values (…) public order and the general welfare of the citizens of Quebec”. The arbitrator also reminds us that the preamble to the Charter provides that “human rights and freedoms are inseparable from the rights and freedoms of others and from the general welfare”.
Thus, any situation in which a right is claimed must be reconciled with “opposing rights, values and harms”. This is precisely the exercise that the arbitrator undertakes.
This is where the decision becomes very interesting. The arbitrator takes note of the fact that both parties (employers and union) agree on two scientific findings that will be the basis of his reflection:
- If they contract COVID-19, unvaccinated employees are likely to suffer the most serious consequences of COVID-19, unlike vaccinated employees;
- If he contracts COVID-19, the unvaccinated employee has a higher viral load than a vaccinated employee and, consequently, is more likely to transmit this virus.
Faced with these two scientific findings, the arbitrator reaches the following important conclusion:
“an employee who is not vaccinated is likely to jeopardize not only his or her health, because of the most serious consequences that he or she may suffer if infected with the COVID-19 virus, but also the health — and even the physical integrity in the most serious cases — of the persons to whom he or she may transmit the virus. I note that it is, among other things, to avoid this consequence that third-party clients require proof of vaccination.”
Therefore, an employer’s clients are entitled to impose a vaccination requirement on their employees and subcontractors because of their obligations under the Act respecting occupational health and safety (“OHSA”). This Act requires employers to take all necessary, humane and reasonable steps to “prevent workers from being exposed to dangerous or unhealthy working conditions” in their establishment.
The arbitrator took the reasoning another step further. He found that non-vaccinated employees who arrive in the workplace represent a risk not only for themselves but also for other employees, which amounts to a violation of the provisions of the OHSA. This Act clearly provides that employees have corresponding duties to those of employers and should take all measures necessary in order to protect their own health and security and that of other employees.
The arbitrator further indicated that the absence of a governmental decree imposing mandatory vaccination or requiring public employees to disclose their vaccination status does not prevent an employer from adopting such a policy in the workplace.
After analyzing the particular circumstances of the case, including the fact that unvaccinated employees may be relocated or placed on a recall list, and considering the employers’ sector of activity (cleanliness and hygiene), the arbitrator concluded as follows:
“The obligation to disclose one’s vaccination status — and thus personal and confidential information — infringes on the privacy of employees. However … such an infringement is inconsequential compared to the major inconveniences, recognized by current scientific findings, resulting from the presence of unvaccinated persons in the workplace”
It should be noted, however, that the arbitrator specifies that he does not rule on the legality of such a policy for all sectors of activity in Quebec.
II. The consequences of refusing to disclose one’s status or to be vaccinated
Since, according to the arbitrator, the proof of vaccination required by the employer’s clients is justified in order to reduce the risks of spreading COVID-19, it then becomes a normal work requirement for employees who are called upon to work for these specific clients.
For the employees who do not meet this requirement, the arbitrator considers that under the “administrative transfer” mechanism provided for in the collective agreements, they are entitled to be relocated to positions that do not have this requirement.
The arbitrator concludes his decision as follows: “In the end, if all of the employer’s clients had this requirement, the unvaccinated employees could not be transferred according to the procedure provided for in the agreement and, because of the resulting lack of work, would find themselves in a layoff situation.”
Union des employés et employées de service, section locale 800 v. Services ménagers Roy ltée., 2021 CanLII 114756 (QC SAT)