This decision comes as Quebec, like other population centres in Canada and the United States, is experiencing a rapid increase in the number of cases. And although the province`s vaccination rate is close to 80 percent — one of the highest in the world — hospitalizations are rising, especially among unvaccinated people, threatening to overwhelm hospitals, officials said. In this context, the arbitrator noted that an employee who does not provide proof of vaccination and is therefore not vaccinated poses a risk in the workplace to both the employee and all other persons on the premises and constitutes a breach of his obligations under section 49 of the OHSA. The arbitrator therefore recognized that the employer of such a person or, in this case, the customers who do business with that person have the right to take measures to control and eliminate risks to the health and safety of the employee. The method chosen here requires proof of vaccination. That therefore justifies, within the meaning of Article 9(1) of the Charter, interference with workers` private life and, consequently, infringement of their physical integrity. The arbitrator added, however, that this justification for the violation of the right to physical integrity was justified, inter alia, by the fact that the worker could in principle be transferred to other jobs for which proof of vaccination was not required. Nevertheless, the arbitrator made some comments on the mandatory vaccination policy, namely that, in this case, the violation of Charter rights was less direct and mandatory than if it was the employers who had required that all their employees be adequately vaccinated and that the harm to the physical integrity of workers was justified, in particular, by the fact that workers could be transferred. In light of this feedback, we recommend that a mandatory vaccination policy provide alternatives to the dismissal of unvaccinated employees to increase the likelihood that such a policy will be considered enforceable. Depending on the employee`s position, alternatives to resignation may include remote work, a change of position, testing before coming to the office, or leave without pay. Of course, the employer is also required to accommodate employees for medical or other Charter reasons, up to the point of undue hardship.

The arbitrator recognized that this requirement does violate the privacy of employees (section 5 of the Charter) with respect to confidential and personal information. Since the requirement of proof of vaccination presupposes that a worker is sufficiently vaccinated, it may be considered that that requirement also infringes the freedom and physical integrity of workers (Article 1 of the Charter). However, the arbitrator then considered whether this violation of workers` rights was justified under section 9.1 of the Charter. This section of the Charter provides that a violation of an individual`s rights may be justified by public order and the general well-being of Quebec citizens. Generally, an employer cannot ask you if you are vaccinated unless the nature of your work warrants it. For example, your employer may require proof of vaccination if you work in the health and social care network and are in contact with vulnerable people. In a recent case, a cleaning company was allowed to require proof of vaccination from its employees. I don`t have an email address or mobile phone. If you do not have an email address or mobile phone, proof of vaccination may be sent to you. Call 1-877-644-4545 for the help you need. Quebec already requires people to show proof of vaccination when entering health facilities, indoor sports facilities, movie theaters, bars and nightclubs.

Exceptions apply to children under the age of 13 and certain adults. As part of efforts to contain new infections, Quebec also has a curfew that extends from 10 p.m. to 5 a.m. It is important to note that the arbitrator did not extend the requirement to disclose proof of vaccination to all employees of the employer, but only to those assigned to customers who requested such proof, as he considered that the requirement of proof of vaccination for all their employees went beyond what was previously justified. While the COVID-19 vaccination record has been used in various fields of activity in Quebec and the federal government has imposed mandatory vaccination on federal public sector employees as well as employees in federal jurisdiction, the Quebec government confirmed on November 3, 2021 that it will not require mandatory vaccination for public or private employers. Subject to a few very limited exceptions in the health sector[1]. As a result, in the absence of a Quebec government decree or a clear public health policy allowing employers to impose mandatory COVID-19 vaccination on their employees, employers have been left in the dark as to whether mandatory vaccination policies can be challenged by workers because of a violation of their rights under the Charter of Human Rights and Freedoms (the “Charter”).