Since the beginning of the pandemic, many have been eagerly awaiting a safe and effective vaccine to allow us to return to normal. With the first doses arriving in Quebec, one question keeps arising: Can employers require employees to get vaccinated before returning to work?
Due to this situation’s unprecedented nature, there are unfortunately no useful precedents offering clear guidelines on how best to address this issue. However, recognized legal principles, such as consent to care1 and the right to personal integrity2, tell us that the basic idea of requiring employees to be vaccinated before returning to work will not pass the test of the courts.
There is one exception to these principles, but it is one that we believe will rarely (if ever) be applicable: the Public Health Act does provide that the government may, in the event of a health emergency, order compulsory vaccination of the entire population or a certain part thereof.3 In such an event, the government would have to ensure that sufficient quantities of doses are available and that the required health services are provided — all at its own expense.4 At this point in time, unless the government makes such an order, this provision will not help an employer who wants employees to get vaccinated before returning to work.
The other, more realistic option available to employers is to demonstrate that employee immunization is a bona fide occupational requirement (BFOR) due, for instance, to frequent and repeated contact with vulnerable clients. This could apply to some categories of workers in the health and social service sectors or in the education sector. It should be noted that even in such circumstances, the vaccination of a recalcitrant employee could not be imposed; however, the employer would then have the option of removing the employee from the risk environment, potentially without pay, and implementing an alternative solution.5
Indeed, there is reason to believe that an employee who refuses to be vaccinated when it is shown that the vaccination constitutes a BFOR could be subject to administrative measures. These could range from a transfer to another department where others’ safety is not at risk to possible dismissal in cases where reassignment is not possible.
What to do now?
We now understand that employers who want their employees to be vaccinated before returning to work will not be able to impose their will through a mandatory vaccination policy or by any other means. However, if vaccination is shown to be a BFOR, other administrative options will be available to employers.
Therefore, we recommend that employers focus on reaffirming their commitment to providing a safe work environment by following all the measures recommended by public health authorities (e.g., social distancing, wearing face masks, etc.).
A reminder from the employer that everyone has a role to play in ending the pandemic and that vaccination can be an effective tool to bring about a return to normal could mobilize employees and encourage them to get vaccinated. Please do not hesitate to contact a member of our team if you have any questions regarding the topics covered in this newsletter.
1 Civil Code of Quebec, CQLR c CCQ-1991, s. 11.
2 Charter of Human Rights and Freedoms, CQLR c C-12, s. 1.
3 Public Health Act, CQLR c S-2.2, s. 123(1).
4 Ibid, s. 125.
5 Syndicat des professionnelles en soins infirmiers et cardio-respiratoires de Rimouski (FIQ) c. CSSS Rimouski-Neigette, 2008 CanLII 19577 (QC SAT) (Application for judicial review dismissed: 2009 QCCS 2833).