Can an employer, a service provider, require proof of vaccination from its employees when its customer requires that all persons accessing its establishment be adequately vaccinated against COVID-19? What happens to employees who are not vaccinated and are denied access to the workplace by that customer? Arbitrator Denis Nadeau seems to have been the first to have to address these contemporary issues in an arbitration award rendered on November 15: Union des employés et employées de service, section locale 800, et Services ménagers Roy ltée (grief syndical), 2021 QCTA 570.
Customers of different housekeeping companies have adopted policies requiring that employees assigned to their buildings be adequately vaccinated. Consequently, since those businesses are bound by contracts with these customers, and must abide by their requirements, they must be able to confirm the vaccination status of employees, failing which their customer could terminate the contracts. Unvaccinated employees would have to be transferred to who do not make such vaccination requirements or, in the absence of such customers, would be laid off.
Naturally, the union challenged the right of employers to collect the vaccination status of employees, alleging that such collection is not necessary and violates the right to private life and physical inviolability guaranteed by the Charter of Human Rights and Freedoms [Charter]. According to the union, this interference is not justified by a legitimate objective of protecting health and safety.
Arbitrator’s decision
In his decision, the arbitrator acknowledged that the requirement to produce a vaccination certificate infringes the right to respect for private life, but concluded, considering the principle that “no right is absolute,” that this obligation is justified in the light of “public order and the general well-being of the citizens of Quebec.” The preamble to the Charter also provides that “the rights and freedoms of the human person are inseparable from the rights and freedoms of others and from the common well-being.” Therefore, a claim to a right must be “reconciled with countervailing rights, values, and harm.”
The parties also agree that the vaccination requirement stipulated by customers is essentially based on two scientific findings:
- An unvaccinated employee who contracts COVID-19 is likely to suffer the most serious consequences of COVID-19, unlike a vaccinated employee;
- An unvaccinated employee who contracts COVID-19 has a higher viral load than a vaccinated employee and, as a result, is more likely to transmit the virus. [para 43]
Considering these scientific findings in the light of employers’ occupational health and safety obligations, the arbitrator concludes that an employer’s customers are justified in imposing a vaccination requirement on subcontractors.
Impact of the Occupational Health and Safety Act
Under section 51 of the Occupational Health and Safety Act [OHSA], an employer must take the necessary measures to protect the health and ensure the safety and physical well-being of his workers. In the specific context surrounding the pandemic, the employer must use methods and techniques to identify, control and eliminate the risks associated with the SAR-CoV-2 virus that may affect the health and safety of workers. Accordingly, the employer must take all necessary, humanly logical and reasonable means to protect the health and safety of workers in their establishment. However, these responsibilities are just as topical and applicable in tripartite relations. The employer’s customers have this obligation not only to their own employees, but also to their suppliers and subcontractors under section 51.1 OHSA.
We must keep in mind that employees also have correlative obligations under section 49 OHSA to protect their own health and that of others. Therefore, an unvaccinated employee represents not only a risk to himself (due to the most serious consequences to which he is exposed if he is infected with the COVID-19 virus), but also to other employees to whom he can transmit the virus when he is in the workplace.
Collection and communication procedure
As for the manner in which information is collected, the arbitrator suggests that it be carried out by a human resources representative rather than by immediate or hierarchical superiors. A simple observation on the Vaxicode application of the “Adequately Protected” status or a paper version of this document is more than enough to allow employers to respond to their customers’ requests. In fact, the only element of information that should be provided to customers is a statement from the employer that employees to be dispatched to the customer’s premises are adequately vaccinated.
A few reservations
In conclusion, it should be noted that:
- The award responds to a general declaratory grievance: it leaves the door open to more specific challenges arising from factors such as working hours in specific buildings, whether people work solo or in teams, in large or cramped premises, etc.;
- The award does not relate directly to the employer’s right to require its employees to be vaccinated on his own initiative, but rather to remove how an employer must act when such a policy is adopted by its customers. However, since the arbitrator states that the customer’s vaccination requirement necessarily becomes that of the employers, his conclusions as to the legitimacy of this requirement should be able to be transposed to the employers who have put in place such a policy;
- The arbitrator specified that he did not intend to rule on the particular case of employees who refused vaccination on religious or medical grounds;
- The decision takes into account the collective agreement binding the parties, but only with regard to the transfer of unvaccinated employees.