Canadian Underwriter
News

Etiquette for asking if your employees are vaccinated


April 9, 2021   by Greg Meckbach


Print this page Share

Asking your workers whether or not they got their COVID-19 vaccine shot is not necessarily a good idea.

“If you are going to require employees to disclose their vaccination status, you need to consider the nature of the workplace,” said Adam LaRoche, a Calgary-based lawyer with Osler, Hoskin & Harcourt LLP’s employment and privacy and data management groups.

In Canada, 7.25 million doses of COVID-19 vaccines have been given, The Canadian Press reported Apr. 9. Two per cent of Canada’s population (762,766 people) have been fully vaccinated.

Whether or not an individual is vaccinated is considered sensitive personal health information, LaRoche said in an interview. That said, once the majority of the population is vaccinated, there may be circumstances under which an employer is justified in asking workers for their vaccination status.

In any case, the employer would have to keep information on the vaccination status of individual workers confidential, only releasing aggregate statistics to the work force as a whole.

But LaRoche says employers need to consider the following three things before they even ask workers whether or not they have received the vaccine:

  • the realistic risk posed by COVID-19 to the workplace;
  • any accommodations that would have to be made for protected grounds under human rights legislation, such as a disability that makes them high risk for side effects or religious beliefs;
  • whether or not wearing masks and physical distancing in the workplace would be sufficient to protect the work force without needing to disclose to everyone in the workplace what percentage of workers have been vaccinated.

An employer should develop a policy that considers these three issues before collecting vaccination status from workers, said LaRoche.

“In a general office, requiring employees to disclose their vaccination status may or may not be reasonable, but in a workplace with higher risk of transmission, to effectively manage the employment relationship – like a meat packing plant for example – you have a much better case [for collecting data on workers’ vaccine status].”

Even if you are justified in collecting that data from workers, the information must be safeguarded and protected from being accidentally released to people without a need to know.

What if someone were to argue that a worker’s right to a safe workplace overrides individuals’ privacy rights?

“The trick with the pandemic is everything evolves quickly,” LaRoche said. “The consensus right now [among Canadian privacy lawyers] would be that that kind of disclosure probably won’t be warranted in the majority of circumstances that we have seen.”

Broadly speaking, employers have a general obligation to maintain a safe workplace, noted LaRoche.

“I think it is probably doubtful that the general obligation (to maintain a safe workplace) extends to permitting or requiring employers to require employees to disclose vaccination status without the consent of that employee,” said LaRoche, who is licenced to practice law in both Alberta and British Columbia.

LaRoche’s comments apply to workplaces across Canada, either because privacy legislation applies or because it is best practice. Employees’ privacy rights in a specific workplace depends on a number of factors, including whether or not the workplace is unionized, whether the workplace is federally or provincially regulated, and, in the case of a provincially-regulated workplace, which province or territory regulates the workplace. Banks, airlines and railways are examples of federally-regulated workplaces.

Workplace privacy legislation varies from province to province, said LaRoche. At the moment, Alberta, B.C. and Quebec are the only provinces with privacy laws that apply to provincially regulated employers. Federally regulated employers have federal legislation on workplace privacy.

 

Feature image courtesy of iStock.ca/South_agency

 



Print this page Share

6 Comments » for Etiquette for asking if your employees are vaccinated
  1. Moncia Cain says:

    Interesting. It occurs to me that the the health insurers and employers may look at their program for sick pay or days off. If someone voluntarily does not get vaccinated (for anything including Covid 19) any illness caused by the un-vaccinated event is not paid for. So if someone were to be sick and unable to work due to mumps, measles or Covid and was not vaccinated for that, it would not be paid as a sick absence. This may cause people to at least consider the financial risk they are taking on themselves

    • TBA says:

      Unless the human rights laws change and/or precedents are set in human rights in canada, what you are advocating is discrimination in the work place. It won’t fly.

      I just had my first doze of vaccine this weekend, so I am not an anti-vaccine, nor am I vaccine hesitant, I am providing facts.

      • Eric says:

        How readily the above poster was willing to tie vaccinations to access to benefits and the common place this view holds amongst people is a clear show of how close we are authoritarianism. “I want this done, I am willing to penalize you XXXX if it isn’t.” I believe it was George Orwell, Animal Farm. “All animals are equal. Some animals are more equal than others.”

        There was an interview of a doctor on CNN. She said the government was missing out on a opportunity to tie vaccinations to opening up the economy “See, you don’t have these freedoms now, but if you vaccinated, you can have all these freedoms back.” The fact she said it with a smile, with the best of intentions in her mind, and with a clear belief that what she was saying was for the benefit of everyone, is the horrifying danger we are all facing.

  2. Eric says:

    I’ve had all my vaccines. I take vaccines prior to travelling to countries that require it. My kids have had all their vaccines. None of us are taking any experimental anything. Give me at least 7 years. I will reconsider it at that time.

    • Jordan says:

      Well they’ve been studying mRNA vaccines since the 70s so according to your requirements you should have no issue then.

  3. Gloria Evans says:

    On what grounds would a volunteer business organization, poll their members to inquire about individual vaccination status?

Have your say:

Your email address will not be published. Required fields are marked *

*