Quebec employers planning their COVID-19 vaccination policies might find it easier to encourage rather than require employees to undergo inoculation, although certain businesses may be able to justify a mandate.
While COVID-19 vaccines so far remain relatively scarce in Quebec, it's not too soon for employers there to start thinking about their strategies.
Companies in the province have no general authority to require employees to take a COVID-19 vaccine, but select businesses may be able to do so if they can show it's warranted based on the type of workplace and the employee's role, according to employment lawyers.
Nursing homes and meatpacking plants, hard-hit by outbreaks early in the pandemic, might qualify, for example, as could certain health care facilities.
An employer's decision to mandate vaccination would require the company to balance its obligations to health and safety in the workplace against the individual's right to refuse inoculation, and to legally justify the decision if challenged.
"It would have to be based on solid evidence that health and safety requires it to be mandatory," said Marianne Plamondon, an attorney in Langlois Lawyers' Montreal office.
A long-term-care center operator could cite the coronavirus outbreaks last year that killed thousands of nursing home residents and sickened employees to defend a mandate as professionally necessary, Plamondon said. "They have so much strong evidence that it has been so dangerous for the employees and also the residents."
Employment lawyers noted that employers requiring vaccination would have to make accommodations for employees who refuse on legitimate grounds, such as medical conditions or religious reasons.
Government Is Not Mandating Vaccines
Quebec's government has indicated it won't mandate vaccination for the entire population even though it is permitted to do so during a health emergency; a provincial mandate could open the door for employers to do the same for the workplace, lawyers said. Nonetheless, officials could change their minds, one lawyer noted.
The province's Charter of Human Rights and Freedoms protects employees from involuntary vaccination, legal experts said. At the same time, employers are legally obligated to protect health and safety in the workplace and, in limited instances, may be able to justify mandating COVID-19 vaccinations.
"We think that a mandatory vaccination policy may be considered necessary and reasonable and would outweigh the harmful impact on employee rights" in certain situations, depending on workplace risks and employee roles, said Patrick Essiminy, an attorney in Stikeman Elliott's Montreal office.
Employers serving vulnerable populations may be able to implement mandatory vaccination policies for employees like nurses and attendants who come into direct contact with residents or patients, but not for others, like finance department employees who don't work near residents, Essiminy said. Certain other high-risk workplaces, like meatpacking plants, also may be open to mandatory policies for workers facing exposure, he added.
Essiminy cited a 2013 Supreme Court of Canada ruling that supported employers' ability to balance interests in making unilateral policies to ensure workplace safety.
He also noted a 2008 case involving a long-term-care facility nurse who refused to receive a flu vaccine per employer policy during an outbreak; the Superior Court of Quebec upheld an arbitrator who supported management's decision to place the nurse on a 48-hour unpaid leave over the refusal.
The arbitrator found the employer was justified in imposing the unpaid leave given the health risks to nursing home residents, and said the nurse had to deal with the consequences of refusing the vaccine.
Health and Safety Are Key
In workplaces where customers and workers aren't at high risk and where mitigation factors such as masks, distancing, physical barriers and speed testing are effective, it will be more complicated to impose mandatory vaccination, Essiminy said.
"COVID-19 vaccination will become a critical issue for employers once the process expands to the vast majority of Quebec employees. Different interests, rights and obligations collide: the employer's obligation to provide a safe workplace and the fundamental individual rights of employees," said Jean-Nicolas Bissonnette, an attorney with Laval, Quebec-based Le Corre Lawyers.
The first COVID-19 vaccination policies will likely face legal challenges, especially in unionized environments, and employers must consider several factors before implementing rules, according to Bissonnette. Employers should have a clear objective of maintaining a safe workplace, he said, and at a minimum, should encourage vaccination throughout the workforce.
Plamondon noted the government has been working with Quebec's biggest businesses to organize workplace vaccination. "Employers can be the key to us succeeding to get the vaccine to people faster," she said.
Employers should fully inform their workers of the vaccine's benefits and risks, and should get a written consent if delivering the vaccination at the worksite, she said.
Indeed, employers need to consider the potential legal and practical ramifications surrounding any vaccination policy, lawyers said.
Mandatory vaccination policies could create liability if an employee suffers an adverse side effect, even though the federal government has established a compensation fund for such incidents, noted lawyers for Torys LLP in a recent blog post.
Companies may face a variety of situations, such as employees not wanting to work in the same space with unvaccinated co-workers, Essiminy noted, suggesting that employers consult with scientific advisors.
"The germane point about any policy is always going to be to protect the employees' health and safety, and that may be the guiding principal here for employees who don't want to take the vaccination," Essiminy said.
Any policy should be reasonable, consistently applied, consistent with terms in collective or individual employment agreements, brought to employees' attention in a clear way, and must spell out consequences for noncompliance, Essiminy said.
Lawyers suggest that any mandatory policy provide workers with reasonable, nondisciplinary alternatives, such as remote work or unpaid leave, and that employers ensure they comply with relevant privacy laws in implementing vaccination policies.
Dinah Wisenberg Brin is a freelance reporter and writer based in Philadelphia.
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