Quebec Arbitrator Upholds Vaccine Requirement Imposed by Customers
November 23, 2021
In a decision released on November 15, 2021, Arbitrator Denis Nadeau found that a vaccination requirement promulgated by customers of several housekeeping contractors infringed the right to respect for private life provided for in Article 5 of the Quebec Charter of human rights and freedoms (the “Quebec Charter“). However, in light of Article 9.1 of the Charter, Arbitrator Nadeau held that the infringement was justified with regard to “public order and the general well-being of the citizens of Quebec.”
Background and Issues
Institutional customers (the “Customers”) of several housekeeping companies (the “Employers”) in the Montreal region informed the Employers that they would require a certificate attesting to the fact that any of the Employer’s employees who were deployed to their buildings were “adequately vaccinated.” The Employers and the employees’ union (the “Union”) agreed to submit, by way of a declaratory grievance, a series of questions regarding the permissibility of the vaccination requirement. The Customers were not parties to the case.
Arbitrator Nadeau considered two issues: 1) whether the compulsory collection by employers of information relating to vaccination status from their employees in response to customer mandates is legally justifiable; and 2) how the collective agreement applied to employees who could not attest to their vaccination status due to their refusal to be vaccinated.
Collection Information Related to Vaccination Status
The Union argued that the Employers were not entitled to collect information relating to the vaccination status of their employees because doing so would violate the fundamental right to respect for private life guaranteed under Article 5 of the Quebec Charter. Arbitrator Nadeau noted at the outset that the Employers themselves did not require proof of vaccination status from their employees in order to work in their respective companies. Rather, it was certain customers who required, or who would soon require, that all employees assigned to work in their premises be fully vaccinated. While the requirement of proof of vaccination status did not emanate from the Employers, Arbitrator Nadeau found that was nevertheless the Employer who imposed requirements on its employees and who had the onus to justify them within the context of the Quebec Charter.
Arbitrator Nadeau agreed with the Union that any information relating to a person’s immunization status is directly related to a person’s health status, and is accordingly part of his or her personal or private life. For these reasons, he held that the collection of immunization status by the Employers violated Article 5 of the Quebec Charter. However, Arbitrator Nadeau also noted that no right is absolute. Article 9.1 of the Quebec Charter requires consideration to be given to the fact that fundamental rights and freedoms must be exercised “with respect … for public order and the general well-being of the citizens of Quebec.”
In order to justify the collection of employees’ vaccination status, the Employers largely relied on provisions of the Act respecting occupational health and safety (the “Act“). The arbitrator noted that the Act is a public order, whose object is “the elimination at the source of the dangers to the health, safety and physical well-being of workers.” The Employers argued that the Act imposes obligations on employers and workers that justify the collection of information related to vaccination status.
Article 51 of the Act creates an obligation for employers to take necessary measures to protect the health and ensure the safety and physical integrity of employees:
51. Every employer must take the necessary measures to protect the health and ensure the safety and physical well-being of his worker. He must, in particular,
(1) see that the establishments under his authority are so equipped and laid out as to ensure the protection of the worker;
(5) use methods and techniques intended for the identification, control and elimination of risks to the safety or health of the worker;
In the context of a tripartite relationship such as the one in this case, Article 51.1 of the Act states:
A person who, although not an employer, retains the services of a worker for the purposes of his establishment must fulfill the obligations imposed on an employer by this Act.
Finally, citing Article 49 of the Act, the Employers argued that employees have corresponding obligations in terms of protecting their health and that of other people in the workplace:
A worker must
(2) take the necessary measures to ensure his health, safety or physical well-being;
(3) see that he does not endanger the health, safety or physical well-being of other persons at or near his workplace;
(5) participate in the identification and elimination of risks of work accidents or occupational diseases at his workplace;
The Employers also referred to the following, characterized by the parties as “current scientific findings”:
a) If he contracts COVID-19, the unvaccinated employee is likely to suffer the most serious consequences of COVID-19, unlike a vaccinated employee;
b) If they contract COVID-19, the unvaccinated employee has a higher viral load than a vaccinated employee and, therefore, is more likely to transmit this virus
Relying on of Article 9.1 of the Quebec Charter, Arbitrator Nadeau found that the requirement to provide a vaccination certificate was justified with regard to “public order and the general well-being of the citizens of Quebec.” However, he also held that a formal requirement of proof of vaccination for all employees went beyond the scope not only of what could be justified by the Quebec Charter, but went beyond what was requested by the Customers. Therefore, the Employers were directed to limit the collection of information related to vaccination status to specifically affected employees, namely those assigned to a building for which a customer imposed a vaccination requirement.
Application of the collective agreement with respect to an employee who refuses to be adequately vaccinated
The second issue considered by Arbitrator Nadeau was the manner in which the collective agreement applied to employees who could not attest to their vaccination status because they refused to be vaccinated.
Pursuant to the Customers’ requirement, in order to be assigned to a building, an employee must attest to being fully vaccinated. Arbitrator Nadeau found that an employee who did not meet the requirement was not subject to a “client request exclusion.” In Arbitrator Nadeau’s view, client request exclusions apply to individual cases where a client “in relation to the employee” requests exclusion and does not apply to a to a scenario in which an employee refused to be vaccinated. Instead, Arbitrator Nadeau held that a section entitled “Administrative transfer” applied in this case:
a) The transfer of an employee is an administrative measure and not an alternative to personnel management.
b) No employee may be transferred to another contract without just and sufficient cause and without prior agreement with the union.
The arbitrator held that the transfer of an employee for non-compliance with a vaccination requirement was an “administrative measure” arising from a particular context. In addition, the arbitrator held, the transfer of the employee would be excluded based on a “just and sufficient cause” standard, as the employee would simply fail to meet one of the requirements under the contract to work at the particular location.
Authored by Harminder Mundi