Vaccination against COVID-19 not compulsory | “A real headache for employers”

President Biden raised his voice last Thursday. He reiterated that on January 4, 2022, all employees of companies over 100 people, federal agency contractors and medical workers will need to be fully immunized. Otherwise, they will have to get tested for COVID-19 religiously.

Isabelle Massé
Press

The measure, which affects millions of Americans hesitant to raise their sleeve or who oppose it, was however quickly suspended by a federal appeals court while it is analyzed whether there are “serious constitutional problems. and procedural ”with it.

But “unconstitutional abuse of power” or not, United Airlines (67,000 employees in the United States), Tyson Foods (120,000) and other Fords (32,000) did not wait for justice to get involved before d ” force their employees to be vaccinated. In September, United Airlines management was delighted that 97% of its workforce was vaccinated, even as six employees who had exemptions filed lawsuits against the airline after being put on unpaid leave, reported the New York Times.

In Quebec, the fact that the Legault government has backed down on compulsory vaccination in the health sector generates many questions and concerns among employers who feel left to their own devices. “We leave the responsibility on their backs, while with the health emergency, it may be up to the government to impose vaccination,” said Karl Blackburn, president and CEO of the Quebec Employers Council (CPQ).

The glaring labor shortage is influencing the decisions to be made. “This is the heart of the problem,” claims Karl Blackburn. It is because of this that the government decided not to impose vaccination. It does not make life easier for employers. It is a very heavy responsibility and it will complicate their situation. What to do with an employee who does not want to be vaccinated? We will probably end up with legal battles. ”

For months, employers feared resistance from employees, notes M^e Marie-Hélène Jetté. “More employers would have a hard line if we weren’t in a period of labor shortage,” says the associate lawyer, responsible for the labor and employment law group at Langlois Avocats.

However, this decline in the public sector is unlikely to have direct effects in the private sector, she believes. “For a long time, private circles do not necessarily adhere to the rules of the public sector,” she says. And this, in all respects. ”

The fact that the Legault government said that it was necessary to be vaccinated by October 15, then November 15, would still have moved many private employees. “In some sectors, it’s more organized,” notes Katherine Poirier, labor and employment lawyer for the firm BLG. Janitors, hairdressers, cooks, bus drivers and other contractors say to themselves: “It goes without saying, because I am going to enter a health establishment. “”

Gray area

For months, the management has nevertheless been sailing in a gray area. On one side hangs the shadow of individual rights, and on the other, the shadow of the right to a healthy and safe working environment. “There are situations related to health or religion,” says Mr.^e Thrown away. But the CNESST for 15 years slaps employers on the fingers by saying that they must ensure healthy and safe environments. ”

“In addition, the CNESST did not want to take a position, adds Mr.^e Pear tree. We do not have a clear guide by sector. So it’s the lawyers who guide the employers in this. ”

GSoft found a situation limiting ambiguities, discontent and fears. Its 275 employees are not required to enter work. Never. But if they decide to go there, they must comply with a series of measures: wearing a medical mask, distancing, questionnaire to be completed on the day of their arrival, limit of people per closed room … Vaccination has never been mandatory either. “The workplace doesn’t matter,” says Kahina Ouerdane, manager, culture and organization, of the software company. Our office has become a coworking space. And it’s huge: 85,000 ft². We have this luxury. We asked ourselves: are there measures that we can take without them being harmful? By imposing vaccination, some might ask for recourse or say: “My freedom, my choice. “So far, everything is fine. ”

“There can be threats against employers, individual and collective,” says M^e Pear tree. Having to be vaccinated can be seen as an inordinate requirement by employees. That said, those who steer it would not be numerous. “Among our customers, a large majority of employees are vaccinated,” she says. Very few or no holdouts. ”

It eases the pressure as a growing number of employers encourage face-to-face return to work. “We see a tendency to be more vaccinated in companies that are teleworking, notes M^e Thrown away. Some employees, used to working remotely, are starting to say: I’m not coming back to an unvaccinated colleague. ”

Solutions

What to do when managers bump into employees who do not want to be vaccinated? Are they allowed to work from home? If so, what does that send as a message? “I ask the employer: does this person have real health problems? answers M^e Thrown away. If so, he must accommodate it. But for those who claim “my body, my choice”, the employer can say: “I respect the integrity of your body, but you have to stay at home. ”We could then put them on administrative absence without pay. A dismissal is drastic. We attract recourse. And time off can cause problems for everyone, waste money. It is a real headache for employers. And even before the government’s retreat, it was. ”

“It’s not easy,” confirms Kahina Ouerdane. All organizations navigate with strangers. We cannot stand behind something concrete. It takes courage to make decisions in a time of ambiguities and uncertainties. ”