All of Québec moved to the green zone a few weeks ago and several employers have started or are preparing the process of returning to work onsite, in whole or in part, and are pleased that the government has relaxed the prevention measures applicable in the workplace. For example, continuous masking is no longer mandatory (but remains recommended) in workplaces, as long as the two-meter social distancing rule is respected or a physical barrier is installed.

However, as the relaxation of health measures is largely dependent on increasing vaccination coverage in the population, many employers have a number of questions regarding their rights and obligations with respect to the vaccination of their workforce. In response to these concerns, we've answered the five most frequently asked questions on the subject.

1. Can an employer force employees to get vaccinated?

First, it should be noted that no Québec court has yet ruled on this issue in the context of the COVID-19 pandemic. The answer to this question may therefore evolve as jurisprudence develops and vaccine coverage increases.

At this stage, however, it is possible to state that a mandatory vaccination policy is likely to infringe the rights to personal integrity, the preservation of dignity and respect for the privacy of employees, which are protected by the Charter of Human Rights and Freedoms. This infringement of fundamental rights results from the invasive nature of the vaccine and the fact that information relating to vaccination status is medical information which lies at the heart of the private sphere of each individual. From the outset, this limits the ability of employers to require their employees to be vaccinated or to make it a condition of employment.

However, because fundamental rights are not absolute, this is not a universal and rigid rule either. On the contrary, it is reasonable to believe that an employer could adopt a policy of mandatory vaccination for some or all positions within its organization, provided that it establishes that the requirement is in pursuit of a legitimate and important objective, and is proportionate to that objective, i.e., rationally connected to the objective and minimally intrusive. An employer wishing to impose mandatory vaccination for particular positions could also argue that it is a bona fide occupational requirement.

Thus, the implementation of a mandatory vaccination policy can certainly be justified in workplaces where employees interact with vulnerable individuals on a constant basis or where the risk of outbreaks is high. Hospitals and long-term care facilities certainly come to mind.

For other workplaces, the situation is more uncertain and will have to be analyzed on a case-by-case basis. In order to prove the legality of their mandatory vaccination policy, employers in other sectors will need to demonstrate, among other things, that there is a real risk of an outbreak in the workplace, that the nature of the work makes it difficult to comply with the rules of social distancing, that the adoption of other protective measures is complex or ineffective, and that the consequences of an outbreak would be particularly severe or costly.

Furthermore, an employer whose employee refuses to be vaccinated when such a requirement would be justified under the criteria discussed above would be entitled to take administrative action affecting the employee. Depending on the circumstances, these actions could range from modifying the employee's duties, to moving the employee to another department, or even suspending the employee without pay (for a specified period). Recurrent testing may also be considered.

It is important to note that if an employee's refusal to be vaccinated is related to the existence of a right protected by the Charter of Human Rights and Freedoms, the employer may have a duty to accommodate. This will be the case, for example, if an employee refuses to be vaccinated because of a documented disability, a religious reason or pregnancy. In such situations, employers will have to consider measures to minimize the negative consequences of refusing to be vaccinated as much as possible. This duty to accommodate does not apply if the refusal to be vaccinated is based solely on the employee's personal choice.

Many employers have chosen to offer incentives to encourage employees to be vaccinated against COVID-19, such as cash or gift cards. While there is no objection to this, employers should keep in mind that individuals who cannot be vaccinated because of a right protected by the Charter of Human Rights and Freedoms could potentially challenge this practice as a form of discrimination.

2. Can an employer require proof of vaccination?

Whether or not it can force its employees to be vaccinated, an employer may find it useful to know the vaccination status of each member of its staff. Indeed, since it is the employer's responsibility to take the necessary measures to protect the health, safety and physical well-being of its employees, this information may be relevant in order to adapt the intensity of the protective measures against COVID-19 that will be implemented within the organization. In this context, the question arises as to whether an employer can compel its employees to disclose whether or not they are vaccinated.

In the Health and Social Services System, the Minister of Health and Social Services has clearly answered this question by publishing a ministerial order requiring certain categories of employees to provide proof of vaccination against COVID-19 in order to continue working in environments considered more at risk. At this stage, however, it seems unlikely that the government will intervene in such a direct manner to regulate this situation in other sectors, thus leaving some ambiguity.

First, there is nothing to prevent an employer from asking employees about their vaccination status, either personally or through an anonymous survey, for example. However, we believe that as a general rule, employees are free to refuse to provide this information and that such refusal does not constitute a disciplinary offence.

However, if an employee refuses to indicate whether he or she has been vaccinated, the employer is entitled to assume that he or she has not been vaccinated and to act on that assumption. In cases where the employer could require the employee in question to be vaccinated as a bona fide occupational requirement, this could include the same administrative action as if the employee had confirmed that he or she had refused to be vaccinated (see question #1 above).

Having said that, once herd immunity is achieved, we believe that such evidence of vaccination will be given much less weight.

3. Can an employer disclose to third parties whether an employee has had the vaccine or not?

Whether or not an employee has been vaccinated is sensitive personal information relating to that individual's medical record. As a result, privacy laws prohibit the employer from disclosing this information to third parties (e.g., customers of the company, colleagues of the employee) without first obtaining the employee's consent.

It should be noted that in order to be valid, the employee's consent must be manifest, free, informed and given for specific purposes. Thus, just because an employee voluntarily informed his or her employer of his or her immunization status does not mean that the employee implicitly authorized the employer to disclose this information to third parties.

4. Can an employee refuse to work with a colleague who has not had the vaccine?

Section 12 of the Act respecting occupational health and safety (AOHS) provides that a worker has a right to refuse to perform work if he or she has reasonable grounds to believe that the performance of that work would expose him or her to danger to his or her health, safety or physical well-being or would expose another person to a similar danger.

To exercise a right of refusal under the AOHS in the context of COVID-19, the refusal must be justified by a danger that is related to one or more risk factors associated with COVID-19. These factors could include the employee's age or a specific medical condition that would expose the employee to real danger if infected with COVID-19. A fear that is not based on an objective danger cannot be sufficient grounds for refusing to work with a colleague who has not been vaccinated. Moreover, neither the AOHS nor the Act respecting labour standards offers protection to a worker whose spouse or dependent has a condition that makes him or her more vulnerable to complications from COVID-19. Thus, a right of refusal could not be justified by the medical condition of a third party since it is a situation that is foreign to the workplace.

Current evidence suggests that the vaccine not only prevents the development of more severe symptoms related to COVID-19, but also helps to reduce the transmission of COVID-19. As such, it is difficult to imagine that a vaccinated worker would refuse to perform his or her job on the grounds that working with an unvaccinated co-worker would expose him or her to an objective danger to his or her health, safety or physical integrity.

It is important to note that some workers cannot refuse to perform dangerous work. This is the case when the danger is inherent to the job or is a normal condition of the job. This is also the case when the refusal to work would directly endanger the life, health or safety of another person.

5. Can a worker who experiences side effects from the COVID-19 vaccine be compensated?

The Commission des normes du travail, de l'équité, de la santé et de la sécurité du travail (CNESST) indicates on its website that a worker who has been vaccinated against COVID-19 in the course of his or her work and who develops an injury as a result of the administration of the vaccine may be entitled to benefits under the Act respecting industrial accidents and occupational diseases (AIAOD).

To qualify for these benefits, the worker must:

• Consult a physician to obtain a medical certificate confirming that the diagnosis of injury is related to the vaccination
• Notify his or her employer as soon as possible once he or she has obtained this medical certificate
• Be able to demonstrate in a preponderant manner that the vaccination was administered by or on the occasion of his or her work
• Be able to demonstrate in a preponderant manner that there is a causal relationship between the injury and the vaccination
• Complete the Worker's Claim form available online on the CNESST website and send it to the CNESST

In order for the vaccination to be considered to be given in the course of work, an employee could demonstrate that the vaccination is related to, or useful in the performance of his or her job, or even benefits the employer's business. Case law has recognized that vaccinations that are given on a voluntary basis do not necessarily break the connection with work.

It is important to note that an employee who refuses or neglects to be vaccinated could have his or her claim denied by the CNESST in the event of injury or illness. Indeed, the fact of not getting vaccinated could be considered as gross and wilful negligence on the part of the employee. Section 27 of the AIAOD provides that "an injury or a disease arising solely as a result of the gross and wilful negligence of the worker who is the victim thereof is not an employment injury unless it ends in his death or causes him severe permanent physical or mental impairment.” Case law has defined gross negligence as being "that which results from a wilful act of an employee, with recklessness, wanton disregard for his safety^[1] " (free translation of the French original). In this sense, an employee who contracted COVID-19 as a result of an unjustified refusal to be vaccinated could have his claim denied, to the extent that his refusal could be characterized as gross negligence. However, gross negligence could not be said to exist in the case of an employee with a particular medical condition that prevents him or her from being vaccinated or if the employee refuses to be vaccinated for reasons protected by the Charter of Human Rights and Freedoms.

If you have any more questions or require additional information, please do not hesitate to contact one of the authors or a member of our Employment and Labor group.

[1] Aménagements Fleurs-O-Pavé inc. and Dubé, 2017 QCTAT 2137.