Policy over privacy: Québec adjudicator makes watershed decision in workplace vaccination case

Nobody can deny that vaccinating against COVID-19 has been a hot topic in recent months. Several fundamental issues surrounding vaccinations and privacy can arise in the workplace, including whether or not employers can mandate that staff disclose their vaccination status in order to comply with company policy or client requests.

In a recent decision, adjudicator Denis Nadeau addressed this very issue. His decision is the first of its kind in Québec regarding COVID-19 vaccination.^[1]

Facts

The management side consisted of various employers that provide housekeeping services in the Montréal area.

Recently, several customers required the employers to provide an attestation that all employees assigned to their buildings were "adequately vaccinated" against COVID-19. Failing this, the service contracts between the employers and the customers could be terminated, and the employees assigned to the contracts laid-off as a result.

The union objected to the employers' attempts to obtain employees' vaccination status, arguing that such a practice would violate the right to privacy ensured by section 5 of the Québec Charter of Human Rights and Freedoms, hereinafter "the Charter."

Management argued that it does not need to justify such a requirement, since it originated from the customer side of the affair. In addition, management argued that the measure would be valid as a safeguard of "public order and the general well-being of the citizens of Québec," in accordance with section 9.1 of the Charter.

The parties referred the grievance to adjudication to obtain a decision on the validity of the request.

The adjudicator's decision

At the outset, the adjudicator stressed that the employers involved cannot claim no responsibility simply because the requirement originated from a third party, namely, their clientele. The adjudicator ultimately found that it was the employers who imposed the requirement on their employees. As a result, the case must be analyzed as though the requirement originated from the employers.

The adjudicator also found that vaccination status is confidential information that falls within an employee's private sphere. Accordingly, collection of vaccination status is a violation of the right to privacy under section 5 of the Charter.

That said, no fundamental right is absolute, and the adjudicator considered whether the violation is justified by assessing whether the limitation of the right is justified in light of "public order and the general well-being of the citizens of Québec," as covered by section 9.1 of the Charter.

First, the adjudicator noted that the employers involved must take certain precautions to protect the health and physical well-being of its workers under the Act respecting occupational health and safety (hereinafter the "AROHS"). The adjudicator added that workers also have obligations related to their own health, safety, and physical well-being, as well as other persons within or near the workplace.

For the purposes of this case, the parties made the following admissions, which they considered current scientific evidence:

1. If an unvaccinated employee contracts COVID-19, the employee is at risk of suffering the gravest consequences of the disease, unlike vaccinated employees;
2. If an unvaccinated employee contracts COVID-19, he or she will have a higher viral load than a vaccinated employee, and is therefore more likely to transmit the virus.

In the adjudicator's opinion, these two observations are "of utmost importance in the analysis at hand." Based on these admissions, the adjudicator found that unvaccinated employees could endanger not only their own health, but also the health and physical well-being of the people to whom they can transmit the virus.

Given the scientific evidence accepted by the parties, as well as the principles expressed in the AROHS, the adjudicator held that in light of "democratic values, public order and the general well-being of the citizens of Québec," the protection of the employees' privacy "cannot prevail." Consequently, the adjudicator found that the employer can in fact collect information about the vaccination status of employees assigned to locations belonging to customers that have adopted such a requirement, while also staying within the limited framework detailed in the decision. 

It is interesting to note that, according to the adjudicator, the presence or absence of government action (such as an order in council) would merely be one of several factors to consider in assessing whether the employer's decision is warranted. In this regard, the adjudicator reiterated that his conclusion is supported by, among other things, "current scientific evidence," the objectives the clients seek to achieve by their request for vaccine status disclosure, the nature of the businesses concerned, and the context of the ongoing COVID-19 pandemic.^[2]

Moreover, the adjudicator stated that an employee who is not "adequately vaccinated" can be assigned to other customers or contracts that do not require a vaccination status disclosure, in accordance with administrative transfer arrangements provided for in the collective agreement.

In the event that all of an employer's customers impose a vaccination requirement, such a transfer would not be possible, and employees who are not "adequately vaccinated" would find themselves laid-off under the terms of the collective agreement.

Takeaways for employers

This decision establishes that an employer requesting the vaccination status of its employees in order to comply with customer requirements is violating the right to privacy protected by section 5 of the Charter. However, this violation may be justified based on the test under section 9.1 of the Charter, depending on the specific circumstances of each case, including the nature of the business in question.

It should be noted that the decision does not address whether a vaccination requirement imposed directly by an employer would be warranted. For clarity on this issue, employers will need to keep an eye on developments in the case law.

For more information about the potential impact of this decision on your business, please contact a member of the Employment, Labour & Equalities group at Gowling WLG.