COVID-19 Vaccine: Employee Choice or Employer Requirement?

Although the vaccination rollout is still in its early stages, several people are questioning the risks associated with COVID-19 vaccines and whether they should in fact get vaccinated. Employers are now faced with a difficult question: Can they require their employees to get vaccinated against COVID-19?

Although no decision has yet been rendered on mandatory vaccination policies in the context of COVID-19, some well-recognized legal principles regarding consent to care and the right to personal integrity should be considered in answering this very topical question.

Under the Act Respecting Industrial Accidents and Occupational Diseases (hereinafter the “Act”), the employer must, on the one hand, take the necessary measures to protect the health and ensure the safety and physical integrity of its employees, and, on the other hand, employees must reciprocally take the necessary means to protect their health and safety at work. In addition, employees are also required to participate in the identification and elimination of risks in the workplace.

It is also important to consider the provisions of the Quebec Charter of Human Rights and Freedoms (hereinafter the “Charter”) and the Civil Code of Québec (hereinafter the “Code”) as they relate to human rights in order to identify the legal issues pertaining to this question. As such, the Charter states that every human being has the right to life, security, integrity, and personal freedom. The Charter also enshrines the principles of the right to freedom of religion, dignity, and privacy. The Code, for its part, provides that no one may be made to undergo care of any nature without their consent, namely examination, specimen taking, treatment, or any other act.

Considering the primacy of the Charter over other Quebec laws, it is likely that individual rights protected by the Charter will supersede employers’ general health and safety obligations. Notwithstanding specific exceptions set out by case law in similar matters, but obviously in a context quite different from that of COVID-19, an employer could not require its employees to get vaccinated, in accordance with the applicable legal principles mentioned above.

Given that the provincial government has declared a public health emergency, it could order compulsory vaccination of all or a portion of the population in accordance with the Public Health Act.

Currently, there is no clear precedent for mandatory workplace vaccination in the context of the COVID-19 pandemic.

However, there exists some case law in Canada regarding mandatory vaccination policies in the context of influenza. As such, certain employers in the health care sector implemented policies requiring workers to be vaccinated against the flu in order to minimize the spread of the virus in the workplace. Unions representing these workers challenged these policies and several labour arbitration decisions followed on whether these policies violated the collective agreement. However, the decisions rendered were divided and did not provide a clear answer to this question.

In Québec, an employer’s decision[1] to remove from the workplace and suspend without pay an employee, who worked in a long-term care facility and who refused to be vaccinated, was upheld by a grievance arbitrator. After balancing the interests of employees and the employer’s objective, the grievance arbitrator concluded that an employer, who can demonstrate that the vaccination of employees is a bona fide occupational requirement due to frequent and repeated contact with a vulnerable clientele, for example, could impose administrative measures on employees who refuse to be vaccinated.

Thus, an employer could assert that vaccination against COVID-19 is a bona fide occupational requirement if it can demonstrate the health and safety reasons justifying such a measure in the specific context of its activities. As a result, employees who refuse to be vaccinated, notwithstanding that vaccination is made to be a requirement for employment or continued employment, could face administrative measures, such as a suspension without pay.

It appears unlikely that governments would order compulsory vaccination of the entire population. As is the case with most legal issues raised by COVID-19, we will need to await the decisions of administrative tribunals or judicial courts to better understand the context in which an employer could require employees to be vaccinated against COVID-19.

In the meantime, we recommend that employers adopt all measures recommended by public health authorities to provide a safe workplace, and strongly encourage employees to be vaccinated to reduce the spread of COVID-19 in the workplace.