March 22, 2021 by Greg Meckbach
If your commercial clients are bringing more workers back into the office, risk managers might be curious as to whether returning workers have received any of their COVID-19 vaccine shots.
But before your clients ask their employees about their vaccine status, risk managers should first consult an employment lawyer, an insurance lawyer advises.
“Before flat-out asking the question, ‘Have you been vaccinated? And when were your vaccinations?’ I would probably consult with an employment lawyer to ensure that I am [legally] able to ask that question,” said Ari Krajden, a Toronto-based partner with law firm Kawaguchi Krajden LLP. Krajden, who is not an employment lawyer, specializes in insurance coverage.
It has been more than a year since COVID-19 was declared a pandemic by the World Health Organization.
The Canadian Press reported Sunday that almost 630,000 people in Canada have been fully vaccinated (about 1.7% of the population). Most approved vaccines require two doses. In Ontario, more than 1.55 million vaccine doses have been given in the province so far.
Despite the vaccination effort, Quebec health authorities are reporting increases in COVID-19 hospitalizations and intensive care cases, with a dozen more patients in each category, for a total of 513 in hospital and 114 requiring intensive care, CP reported.
If case counts and the number of COVID-19 patients requiring hospital treatment decrease, and a people start to have their vaccines, more people are going to want to come into the office, Krajden said in an interview.
“My office is empty. I am here alone. If one other person wants to come in and sit 30 feet away from me, I don’ t have a problem with that.”
But as more people return – and work in closer quarters – some will want to know whether the person sitting next to them is vaccinated, suggested Krajden.
A recent online poll of more than 1,150 Canadian P&C industry professional by Canadian Underwriter found that just over half (53%) of respondents said they would not feel comfortable working in the office alongside people who chose not to be vaccinated. Fifty-five percent in the poll said vaccinations should be a requirement before returning to the office.
The critical question for risk managers is whether that information is considered an employee’s private medical information.
“As employers are re-opening their businesses and will hopefully eventually be able to lessen and reduce some of the measures they have put in place during the pandemic, they are first going to want to ensure that – as they have people closer together for longer periods of time and/or eliminate office mask mandates, as permitted by the government – their employees have been vaccinated.”
Meanwhile, there are conflicting views about whether employers are allowed to make it mandatory for their workers get vaccines, law firm McMillan LLP noted in an article posted this past January.
“Employers should consider how a proposed mandatory vaccination policy balances the employee’s human rights and privacy interests against the legitimate safety risks posed by COVID-19,” said McMillan. “In particular, given the invasive nature of vaccinations, any employer looking to uphold a mandatory vaccination policy would need to explain why alternative measures, such as mask-wearing, hand-washing, and physical-distancing, would be inadequate compared to employees receiving a vaccine.”
Health Canada has approved four vaccines – Pfizer-BioNTech, Moderna, AstraZeneca and Janssen (Johnson & Johnson). The Pfizer-BioNTech, Moderna and AstraZeneca vaccines require two doses while the Johnson & Johnson vaccine takes a single dose.
Feature image via iStock.com/tumsasedgars