While employers wonder if requiring the vaccination passport in the workplace violates human rights and freedoms or the right to respect for private life, an arbitration award could take a weight off their shoulders.
At the request of a union of household service employees who work for five companies (Services Ménagers Roy, Conciergerie Speico, Signature service maintenance, GDI Services and GSF Canada), the arbitrator, Mr.e Denis Nadeau, ruled Monday that the requirement of a vaccination certificate was a justified condition for working with their clients. And no need for a government decree to put in place such a requirement.
“After analysis, I am of the opinion that the requirement to provide a vaccination certificate infringes the right to respect for private life provided for in Article 5 of the Quebec Charter,” we read from the pen of M.e Nadeau. Moreover, in light of the first paragraph of Article 9.1 of the Charter, I consider that this condition is justified with regard to “public order and the general well-being of the citizens of Quebec”. Employers will therefore be able to collect, within a limited framework, information relating to the vaccination status of employees who are assigned to the buildings of customers who formulate this requirement. ”
If there is a breach of privacy, it is deemed “inconsequential in comparison to the major drawbacks and recognized by current scientific findings, arising from the presence of unvaccinated people in the workplace”, we read.
Bute Nadeau believes that only information related to vaccination status should be kept by employers. The names and private information of people with immunization status can also not be passed on to household business customers. In addition, the collection of information should be done by a person in the human resources department of the household service company, and not by an immediate or hierarchical superior.
“The arbitrator considers that vaccination status becomes a normal requirement at work for employees assigned to contracts where a vaccination requirement is required,” summarizes Fasken, the law firm that represents household service companies. However “the decision does not confirm the right of an employer to place its employees on unpaid leave, or to fire them, in the event of the violation of a policy of compulsory vaccination and this question will have to be decided by the courts”.
“A comfort zone for an employer”
Could this decision make children? Give the green light to other organizations and SMEs to require a vaccination certificate, without fear of recourse? “It is clearly a first decision which gives a comfort zone for an employer who wants to put this in place”, answers Me Jean-François Cloutier, lawyer in labor law, employment law and human rights at Fasken.
According to the logic of the arbiter who weighs between individual and collective law, the objective is legitimate.
Me Jean-Francois Cloutier
“From a legal point of view, it is reassuring, but this decision confirms what well-informed companies already knew, namely that you can require the vaccination passport to enter your premises,” said Manon Poirier, general manager of the Order of Certified Human Resources Advisors. Having said that, if I demand that you be vaccinated and that you are not, do you work from home? Am I putting you on unpaid leave? This is the crux of the matter. It upsets a lot of legal principles and we have no clarity on that. ”
Basically, the type of work environment will have an influence on management decisions and on the relevance of implementing such a requirement. “One might wonder in a big box store, for example, the advantage that this provides in terms of controlling the risks of an employee being vaccinated, when he probably comes into contact with customers every day who are not all vaccinated. But it is up to each employer to make his own assessment of the risks involved, ”reflects Mr.e Cloutier, who reminds us that we are talking about a requirement here, not an obligation.