Arbitral award illuminates employers on mandatory vaccination at work


As discussed in our last publication, in relation to workplace mandatory vaccination, there is, to date, no clear guidance to help employers manage the issue of mandatory vaccination, nor legal precedent that can be applied to the letter.

On the other hand, an arbitral award rendered on November 15, Service Employees Union, Local 800 v. Services ménagers Roy ltée1 (“Arbitral Award”), provides certain clarifications in this regard and could be used by employers to guide them in their decision about whether to impose vaccination on their employees.


The facts leading to this Arbitral Award are as follows:

The respective customers of several cleaning companies in the Montreal area have informed them that they will require, by impending deadlines, that employees assigned to cleaning their establishments be adequately vaccinated against COVID-19.

In this context, the cleaning companies are wondering whether they can require that their employees be vaccinated to be able to continue to assign them to customers who require such protection against COVID-19.

As the employees of these companies are all represented by the same union, the latter, together with the employers, decided to submit several questions related to workplace mandatory vaccination to an arbitrator in the form of a declaratory grievance.

Matter in dispute

The issues in dispute submitted by the two parties in the proceedings can be summarized as follows (translated from the French):

“(1) legal compliance with the mandatory collection, by employers, of information from their employees relating to vaccination status, in whole or in part, due to the requirements established by some of their customers;

(2) the application of the collective agreement with respect to employees who cannot certify their vaccination status due to their refusal to be adequately vaccinated.”2

Claims of the parties

Employer side

First, it should be noted that the employers are not themselves requiring the vaccination of their employees; it is their respective customers who require that the employees assigned to their premises be adequately vaccinated.

This nuance is very important, as one of the key arguments brought forward by the employer side, which is not disputed by the union, is to the effect that if employers did not impose vaccination on their employees, customers would likely terminate service contracts, which would cause employees assigned to those contracts to be laid off for lack of work.

In addition, the employer side indicates that although information related to a person’s vaccination status is confidential personal information, the collection of this information by an employer does not significantly infringe on the privacy of this person.

Finally, it invokes that like their employees, employers have obligations arising notably from the Act respecting occupational health and safety3 to take the necessary measures to protect the health and ensure the safety and physical well-being of their employees and colleagues and that the imposition of mandatory vaccination meets this obligation and is part of a contribution to “the collective effort, supported by public health and the various government authorities.”4

Union side

The union side, for its part, alleges that employers cannot require information relating to the vaccination status of their employees to be obtained, as this would infringe on the right to privacy, protected by section 5 of the Charter of human rights and freedoms5 (the “Charter”).

It also points out that it is paradoxical that the employers in this case can demand proof of vaccination from their employees, when the provincial government has recently abandoned the imposition of vaccination on healthcare workers, a very sensitive area.


The basic premise of this Arbitral Award, accepted by all parties to the proceedings, was that current scientific findings support the following conclusions regarding vaccination against COVID-19:

“a) If they contract COVID-19, an unvaccinated employee is likely to suffer the most serious consequences of COVID-19, unlike a vaccinated employee;

b) If they contract COVID-19, an unvaccinated employee has a higher viral load than a vaccinated employee and, consequently, is more likely to transmit the virus.”6

Then, in connection with the invasion of privacy invoked by the union, the arbitrator indicates that information relating to a person’s vaccination status is indeed confidential, as it is directly related to the state of health and is thus part of a person’s private life.7 Therefore, he considers that there is, in fact, in an employer’s requirement of vaccination, an infringement of a right protected by the Charter.

However, based on recent case law on vaccination,8 the arbitrator explains that questions related to a person’s vaccination status do not represent an “unreasonable intrusion into their privacy.”9

In this regard, the arbitrator recalls that one of the key principles in matters of human rights and freedoms is that no right is absolute.10 Therefore, in terms of vaccination imposition, there exists the difficult exercise of weighing and reconciling the various fundamental rights at stake.11

In this case, there is, on the one hand, the right to privacy12 and, on the other, the right of employees to fair and reasonable working conditions that respect their health, safety, and physical integrity.13

In cases of conflict between several fundamental rights, Article 9.1 of the Charter indicates:

“In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, State laicity, public order and the general well-being of the citizens of Québec.”

According to the arbitrator, it is these notions of “public order” and “general well-being of the citizens of Québec” that must take precedence in the situation presented. Indeed, he considers that employers are entitled to adopt “methods and techniques aimed at identifying, controlling, and eliminating risks that may affect the health and safety of the worker”14 and that the method adopted here of requiring proof of adequate vaccination is warranted.

Furthermore, regarding the union argument that the provincial government has waived the imposition of vaccination on healthcare workers and other sectors deemed to be at risk, the arbitrator indicates:

“I do not believe that the presence or absence of State actions is the only standard by which to assess the purely private requirement under consideration. In fact, the implementation of the obligations of employers and workers provided for in the OHSA is not conditional on prior intervention by the government or lawmakers.”15

However, without commenting on all sectors of activity in Québec, the arbitrator specifies that his conclusions are applicable only to the employers and employees involved in the present case, who operate in a sector where the very nature of the work (cleaning) is closely linked and inseparable from the context of eliminating sources of danger to health, safety, and physical integrity.

The arbitrator therefore concludes that employers could collect information relating to vaccination status but only with respect to employees currently assigned to customers requiring vaccination and not with respect to all their employees, as this would be beyond the scope of what is justified.

The arbitrator also specifies that the information should be collected by a human resources representative, rather than by immediate or hierarchical superiors. Moreover, due to the confidential nature of such information, the employer cannot communicate to their customers a list of the names of vaccinated and unvaccinated employees but may only confirm to them that as of a certain date, all the employees assigned to a building of a customer who has established this requirement are adequately vaccinated.

As for any sanctions in the event of non-compliance with the vaccination requirement, the arbitrator considers, because it is not disputed by the parties, that employees who do not wish to produce adequate proof of vaccination may, in principle, be relocated to positions, contracts, and customers that do not require vaccination. Thus, the arbitrator does not rule on the possibility or legitimacy of imposing other sanctions in the event of non-compliance, such as suspension without pay or dismissal.

Next, although the employer side tried to claim that unvaccinated employees were not respecting a “normal work requirement” and would no longer be able to work on a regular basis and could therefore be considered to have abandoned their position or resigned, the arbitrator does not adhere to this vision. He considers that the possible remedy, in this case, is the administrative transfer of the unvaccinated employee to another workplace, for just and sufficient cause.

He therefore specifies that it is only in the event that all the employers’ customers demand vaccination that unvaccinated employees could be laid off due to a lack of work.


Finally, it should be noted that the arbitrator’s decision is part of the specific framework of a declaratory grievance, based on the collective agreement binding the parties and the evidence presented by the employers and the union concerned. In addition, the arbitrator specifies that none of the questions posed by the parties consisted of assessing whether alternative measures, such as wearing a mask, for example, could be put in place for people refusing vaccination. Therefore, employers must exercise caution and cannot entirely rely on this Arbitral Award.

It would therefore be wise for employers to determine the impact of this decision on the specific rights and obligations at their company before imposing mandatory vaccination in their workplace or disciplinary measures following a refusal by their employees.

Written with the collaboration of Me Mary-Pier Lareau, lawyer.


1 Service Employees Union, Local 800 v. Services ménagers Roy ltée, 2021 CanLII 114756 (QC SAT) (hereinafter, “Arbitral Award”).
2 Arbitral award, par. 3.
3 Act respecting occupational health and safety, CQLR c S-2.1. (the “OHSA”).
4 Arbitral award, par. 36.
5 Charter of human rights and freedoms, CQLR c C-12.
6 Arbitral award, par. 43.
7 The arbitrator refers to several judgments to support this finding, in particular: Godbout v. Longueuil (City), [1997] 3 SCR 844, par. 97 and 98 and Office and Professional Employees Union, Local 57 and Caisse populaire St-Stanislas de Montréal, 1998 CanLII 27651 (QC SAT), p. 27.
8 R. v. Barnabé-Paradis, 2021 QCCS 4147 and R. v. Frampton, 2021 CanLII ONSC 5733.
9 Arbitral award, par. 17
10 Ward v. Québec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, par. 37.
11 Bruker v. Marcovitz, 2007 SCC 54, par. 79.
12 Art. 5 Charter.
13 Art. 46 Charter; Civil Code of Québec, CQLR c CCQ-1991, art. 2087 and arts. 2, 49 and 51 OHSA.
14 Art. 51(5) OHSA.
15 Arbitral award, par. 72