Quebec employer justified in suspending health-care worker who refused COVID-19 vaccine: tribunal

An orderly who was suspended without pay for refusing to be vaccinated against COVID-19 has lost her case before Quebec's administrative labour tribunal.

The worker alleged that the suspension was a veiled dismissal.

The tribunal found that she had instead been suspended without pay and that her employer, a religious group, had clearly stated that she would be able to return to her position when she was properly vaccinated.

The Quebec government had announced in September 2021 that it was mandating vaccination for health-care workers and that those who did not show proof of vaccination would be suspended without pay. However, fearing a shortage of staff, it reversed its decision and instead chose to require these resistant workers to be tested regularly.

But the employer did not share this concern, so it maintained the original vaccination requirement.

The employer explained to the tribunal that it housed nuns who were on average 90 years old, ill, sometimes at the end of their lives, and not very independent. He said he was afraid of experiencing the situation that some CHSLDs had experienced.

As a precaution, he had decided not to authorize screening tests as a substitute for adequate vaccination.

As a result, the worker was suspended without pay for an indefinite period of time because of her refusal to be vaccinated. She then filed her complaint. 

In its decision, however, the tribunal noted that "she was aware of the consequences of her decision and knew that she could return to her position as soon as she was properly vaccinated" or when the health measures were lifted.

"In the particular circumstances of this case, where the health of vulnerable seniors and employees is at stake in the context of a global pandemic, the employer is justified in requiring her to be properly vaccinated and in suspending her without pay at the deadline for her choice not to be vaccinated," the tribunal ruled.

The employer respected the employees' freedom of choice to accept or refuse the COVID vaccination.

"In doing so, it did not interfere with their right to respect for their integrity, as set out in the Charter of Human Rights and Freedoms and the Civil Code of Quebec," it added.

This report by The Canadian Press was first published in French on Feb. 6, 2023.