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.