Can an employer require a COVID-19 vaccination?

While the number of COVID-19 vaccinations increases daily, the issue of mandatory vaccination in the workplace is increasingly pressing. Could an employer require his employees to be vaccinated against this disease in order to return to the workplace? Current situation.

Legally, the Civil Code of Quebec and the Charter of Human Rights and Freedoms protect the notion of consent to care and the integrity of each individual. There’s no question of forcing someone to receive a shot against their will.

Certainly, the Public Health Act provides for the fact that the government could, in the event of a health emergency, order mandatory vaccination for the entire population or for a certain segment of it. However, this exceptional measure is unlikely to be applied unilaterally.

Nevertheless, an employer can encourage employees by making vaccination a “justified occupational requirement”, as in a prerequisite for a particular position.

It’s then up to the organization to prove that it is necessary to carry out the essential functions of the job as well as to ensure the health and safety of employees, users and visitors.

In the case of hospital staff, it is logical to think that vaccination will become a justified occupational requirement for front-line workers given the risks of infection and spread of coronavirus, says Marianne Plamondon, an expert labour lawyer.

“There is enough data to show the seriousness of COVID-19 and to prove that the vaccine is necessary for performing essential functions in certain sectors,” explains Ms Plamondon, partner at Langlois Lawyers.

Plus, the Quebec government recently adopted a ministerial decree stating that front-line workers must provide their employer with proof of vaccination against COVID-19. In case of refusal, they will have to undergo recurring screening several times a week.

And if they refuse to submit to it, “they will be reassigned to similar tasks in an unaffected environment or laid off without pay if reassignment is not possible or if it is refused by workers,” the ministerial order says.

Beyond health

While for the moment the issue is limited to the health sector, Marianne Plamondon believes it could soon extend to other sectors, for example food, events or retail.

“In work areas such as slaughterhouses, employers could invoke a justified occupational requirement, taking into account working conditions where it’s impossible to keep a two metre distance.  The same goes for customer service, where one person can deal with hundreds of people a day. ”

“Stay tuned!” Marianne Plamondon concludes. She feels that the situation could still evolve, depending on the pace of the vaccination campaign and the spread of variants.


Author: Benoit Valois-Nadeau

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