We sat down with Ellen Swan, Litigator, Employment & Commercial Lawyer, and Ben Rovet, Privacy Lawyer, about what employers & employees need to be aware of regarding COVID-19 vaccinations in the workplace.
As we start to see the light at the end of the pandemic tunnel, many employers are getting ready to welcome their teams back to the office. But navigating this return to in-person working comes with many uncertainties, especially when it comes to requiring proof of vaccinations for employees.
Employers are in a challenging position at the moment because they need to delicately balance workplace safety concerns against privacy regulations and their employee’s human rights. And because legislators have never had to deal with this kind of global pandemic and mass immunization program before, the regulatory and governmental guidelines that employers traditionally lean on are still being ironed out.
So to help provide some clarity, we’ve answered some of the most pressing questions around vaccinations for employees and employers.
Do all your employees need to be vaccinated for your workplace to be considered safe?
This is perhaps a question some employers haven’t considered, but if your workplace has been open over the past 16 months and staffed by employees, it’s difficult to make the argument that the environment is all of a sudden no longer safe because a vaccine has become available. If workers have been working from home, it will similarly be difficult to argue that they immediately need to return to the office and must be vaccinated to do so.
Many privacy experts also agree that the necessity of requiring proof of vaccination for most places of work really isn’t there. The guidance coming from Privacy Commissioners is that a vaccine requirement must be necessary to achieve an intended public health purpose, mandating vaccines must be effective to achieve this purpose, and the privacy risks from requiring vaccines must be proportionate to the public health purpose.
Depending on the workplace, this could be difficult and costly to prove.
There may be less invasive options for employers to consider in order to protect the health of staff, including requiring masks, face guards and/or other PPE to meet workplace safety regulations without mandating vaccinations.
Can employers require employees to get vaccinated?
Unless you work in a specific type of healthcare-related environment – like a long-term care facility or as an in-home care worker where being vaccinated is a requirement to do your job safely – the answer to this question in most cases is no.
Generally speaking, employers cannot force employees to have medical procedures against their will. This is true for both existing and new employees. There are many reasons a person may choose not to get vaccinated. They may have a medical exemption, like any person currently undergoing cancer treatment (information they are not required to share with their employer), they may be against vaccinations on religious grounds, or they may have vaccine anxiety, which may be considered a disability. All of these exceptions must be accommodated by the employer.
What are the risks and responsibilities of collecting employee’s health data?
Collecting personal health data from your employees comes with a number of risks. Putting aside whether you’re legally allowed to collect this highly sensitive data, the primary risk here is ensuring this data is collected, stored, and eventually disposed of safely and securely. This includes only providing access to the data for those who need it and ensuring you have proper systems and processes in place to manage it.
It’s important to remember that the majority of those who choose not to get vaccinated will do so for legitimate medical and disability reasons. In those cases, employers would be required to collect and store this additional medical data, as well as their vaccination status. Collecting this data could potentially expose your business to accusations of discrimination if they felt you were using knowledge of these medical conditions to make decisions in the workplace.
How can employers encourage employees to get vaccinated?
While mandating vaccinations likely isn’t possible for most employers, there are steps they can take to help incentivize their employees to get vaccinated. This includes relaxing certain workplace protocols, opening up the communal lunchroom and allowing for social interaction with people in other departments and other parts of the building for those who have been vaccinated. There’s also the potential option to allow only those who have been vaccinated to return to in-person working at the office. All of these options, however, would require an employer to collect the vaccine status information for its employees.
How do we manage vaccinations for employees who need to travel?
The Canadian Government now allows fully vaccinated travellers to skip the 14-day quarantine and day-8 testing if they submit their mandatory information and digital proof of vaccination through the ArriveCAN app. Currently, travellers do not have to provide that information, but if they choose not to, they are required to quarantine for 14 days and take the day-8 test.
Beyond assuming their employees follow this federally-mandated travel requirement, employers should also remind all staff that the Public Health Agency of Canada asks that individuals returning from travel monitor their health for fever, cough and difficulty breathing for 14 days after their arrival in Canada. This is also a good time to remind staff about your organization’s sick leave policy, including clarifying which circumstances and symptoms require an employee to stay home from work.
The rules and regulations around vaccinations in the workplace are changing rapidly, and employers and employment lawyers are working their way through new issues and challenges as they arise.
If you need help drafting policies and procedures for your workplace, or if you’re looking for help understanding your rights as an employee, Caravel Law is an alternative legal firm with over 60 qualified and experienced lawyers to help support your legal needs. Get in touch with our team today to find out more.
The information provided in this article is not intended to be legal advice. Many factors unknown to us may affect the applicability of this content to your particular circumstances.