Canadian Lawyer

November 2021

The most widely read magazine for Canadian lawyers

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www.canadianlawyermag.com 33 VACCINATION POLICIES SPECIAL PROMOTIONAL FEATURE Mandatory workplace vaccination Immunizing yourself against psychological harassment claims AT THE start of the summer, widespread hope regarding the effectiveness of COVID- 19 vaccination led many to predict a return to normal by September 2021. However, the "fourth wave," which some call the "wave of the unvaccinated," has changed the outlook and forced employers to revisit their plans. How will employers navigate these troubled waters? To facilitate a return to normal despite the fourth wave, some employers are consid- ering mandatory vaccination, and there will be a range of approaches for implementing this measure. Still, employers should remain cautious: mandatory vaccination is not immune from challenge, particularly in view of the rights and freedoms guaranteed by the Charters. Even if employees have the right to refuse being vaccinated, they may still be subject to administrative measures, such as suspen- sion without pay 1 , and may have to face other consequences for their decision. Another issue for employers to keep in mind when considering mandatory vaccina- tion is psychological harassment, which is defined as follows: · Vexatious behaviour; · Manifested by repeated and hostile or unwanted conduct, verbal comments or actions; · Affecting the dignity or psychological or physical integrity of the individual; and · Resulting in a harmful work environ- ment for the employee. As we have seen, the issue of vaccination divides and polarizes. It is not difficult to imagine employees being harassed by their coworkers or their employer for refusing vaccination. Employers need to reflect on their obligations with respect to harassment prevention and take steps to protect them- selves against claims that may arise from these situations. In light of these obligations, employers should: · Communicate with employees to empha- size that the workplace is not the place to discuss vaccination and that it is not up to employees to judge or decide what should be done to mitigate COVID-related risks; · Remind people that ideological confrontation in the workplace is not welcome and will not be tolerated; · Clearly convey that some people do not get vaccinated for reasons that are prohibited grounds of discrimination and that accommodations are possible for them; · Emphasize mutual respect, individual autonomy and the fact that this is a personal decision. With many policies regarding mandatory vaccination in the workplace taking effect or about to take effect, it will be interesting to see how the courts will address the emerging issues related to COVID-19 vaccination. We expect there to be a number of developments in this area. Brought to you by Raphaëlle Renzo-Gaudet is a lawyer at Langlois Lawyers' Québec City office. She practises primarily in the areas of civil litigation, commercial litigation and labour and employment law. Raphaëlle joined the firm in the summer of 2019 as a law student and completed her articling internship there in 2020. During her academic career, she completed a semester abroad at Toulouse 1 Capitole University, in France, where she studied comparative and international law. While at law school, she also volunteered for Pro Bono Students Canada. She carries on her practice in both English and French. Thomas Stelmazuk-Côté is a lawyer at Langlois Lawyers' Montréal office. He practises primarily in labour and employment law. He is particularly interested in legal issues relating to labour standards and human rights and freedoms and has an interest in litigation and public law. Thomas joined the firm in the summer of 2019 as a student and completed his articling there in 2021. During his law studies, Thomas was involved in the community by articling with an organization working to make family justice more accessible and to achieve greater gender equality. He also completed a semester abroad at the China University of Political Science and Law. He practises law in English and French. Langlois Lawyers is a leading law firm in Quebec. In 2020, we received the Regional Law Firm of the Year in Canada award by Chambers Canada and were ranked first in the Top 10 Quebec Regional Law Firms survey by Canadian Lawyer. With a team of over 150 professionals across the province, we offer our business clients a full range of legal services. Our organizational structure allows us to provide the services of a large firm, along with the reasonable rates of a mid-sized firm and the flexibility and availability of a smaller firm. The importance we place on the human dimension in the workplace sets us apart. With an emphasis on teamwork, we encourage synergy between our practice groups in view of offering business solutions tailored to your specific needs and requirements. 1 See, for instance, our translation of the following excerpt from the ruling, Syndicat des profes- sion-nelles en soins infirmiers et cardio-respiratoires de Rimouski (FIQ) c. CSSS Rimouski-Neigette, 2008 CanLII 19577 (QC SAT), para. 85: "The Charter is not an all-risk insurance policy allowing a per- son—in this case an employee of a residential and long-term care centre—to receive compen-sation for having been excluded from the workplace when that person refused to be vaccinated and receive prophylactic measures, as was their choice and their right."

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