Recent decisions regarding mandatory vaccination policies

Published by our Labour and Employment Law team.

In October, the Quebec government announced that vaccination would be mandatory for health care workers but did not provide guidance for other economic sectors. In the absence of provincial government directives on mandatory vaccination in the workplace, employers must justify this measure based on the specifics of each job. Recent Ontario arbitration awards, as well as a Quebec decision, demonstrate the intricacies of this situation.

Recent arbitration awards in Ontario

In the space of a week, two grievance arbitrators issued seemingly contradictory arbitral awards.

In an award issued on November 9, 2021, Arbitrator Von Veh dismissed a union’s grievance challenging Paragon Protection Inc.’s mandatory vaccination policy. Paragon is a company that provides security services to over four hundred clients. In September, the employer notified employees of its mandatory vaccination policy, which was then challenged by grievance.

Arbitrator Von Veh found that the employer’s policy was consistent with the collective agreement and the Ontario Human Rights Code and that the policy was consistent with the employer’s duty to provide a safe workplace. A key fact in the case was a provision in the collective agreement to which the arbitrator referred in order to establish the union’s consent. This provision, which was adopted several years before the onset of the pandemic, specifies that security guards must comply with the vaccination policies of the workplaces to which they are assigned. Finally, the arbitrator distinguished a 2018 arbitration award that allowed a grievance challenging a mandatory influenza vaccination policy on the basis that COVID-19 is more dangerous.

Two days later, on November 11, 2021, Arbitrator Stout allowed a grievance challenging a mandatory vaccination policy at the Electrical Safety Authority. It should be noted that the Electrical Safety Authority had never previously required vaccination, and there was no provision in the collective agreement regarding vaccination. In the absence of such a provision, the arbitrator concluded that there were less intrusive ways to ensure employee safety, while noting that a mandatory vaccination policy may be justified in high-risk environments.

At the federal level

The federal government has adopted a vaccination policy for third-party providers delivering services in federal government workplaces. This policy came into effect on November 15, 2021. Mr. Lavergne-Poitras challenged the constitutionality of this policy and sought an interlocutory injunction to suspend its operation. Without ruling on the policy’s constitutionality, the Federal Court denied the motion for an injunction on November 13, 2021. It should be noted that Mr. Lavergne-Poitras’ arguments were weighed against the government’s legitimate objective of providing safe workplaces.

Application in Quebec

On September 1, 2021, the Quebec government passed an Order in Council listing a number of activities and places for which proof of vaccination was required. This order was challenged before the Superior Court, and on November 13, 2021, the Court ruled on the plaintiffs’ application for a stay.

In rejecting the application for a stay, the Superior Court emphasized that the places covered by the order are locations frequented for social activities, not for receiving essential services. Thus, the plaintiffs would experience at most “disappointment, inconvenience or annoyance,” not irreparable harm, which is the threshold for granting a stay. Finally, the Superior Court considered the balance of convenience test, which it described as “determinative in the context of an application for a stay that involves the rights and freedoms guaranteed by the Charters because of the need to consider the public interest.” On this point, the Superior Court concluded that the public interest in the context of a pandemic tipped the balance of convenience in favour of the Quebec government.

More recently, Arbitrator Denis Nadeau assessed the right of an employer to inquire about the vaccination status of its employees.¹ According to the arbitrator:

Based on the foregoing analysis, I am of the opinion that the requirement to provide proof of vaccination infringes on the right to privacy provided for in section 5 of the Quebec Charter. On the other hand, in light of the first paragraph of section 9.1 of the Charter, I believe that this requirement is justified with regard to “public order and the general well-being of the citizens of Quebec.” Employers will therefore be able to collect, within a limited framework, information about the vaccination status of employees who are assigned to the premises of clients who impose this requirement. (translated from the original)

Arbitrator Nadeau concluded that, under the circumstances, the administrative transfer of non-vaccinated employees (who cannot work at specific client locations) is justified under the collective agreement in force, since the non-vaccinated employees cannot perform part of their work.

What conclusions should we draw?

Arbitration awards do not have the force of precedent, i.e. they are not binding on decision-makers. This is especially true for Ontario awards. However, it is possible to identify certain principles that would be useful to Quebec employers.

Employers have an obligation to ensure the health and safety of their workers. Although a vaccination policy necessarily affects the physical integrity of employees, it could conceivably be justified in certain circumstances. A comprehensive analysis of the collective agreement (in a unionized environment) and the risks specific to the workplace should be undertaken prior to the adoption of any vaccination policy.

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¹ Union des employés et employées de service, section locale 800, et Services ménagers Roy ltée (union grievance), 2021 QCTA 570 (CanLII).