Can employers require proof of vaccination?

Having a vaccinated workforce is important to employers

Can employers require proof of vaccination?

by Puneet Tiwari, Legal Counsel & Legal Claims Manager, Peninsula Canada

The rollout of vaccines is well underway across Canada and many are expected to get their shot in the coming months. After over a year of restrictions and closure orders, this could mean that a return to relative normalcy is coming sooner rather than later for businesses.

Having a vaccinated workforce is important to employers. Not only does this make the workplace safer for everyone, it will also ease workers’ concerns and prevent work refusals. Employers need to know who has gotten the vaccine in order to make health and safety decisions in the workplace.

Now that some provinces have implemented paid vaccination leave, employers might also want to confirm workers’ entitlement to paid time off.

Requiring proof of vaccination from staff must be balanced with applicable privacy legislation as well as human rights considerations.

In Canada, workers’ privacy is protected by either federal legislation like the Personal Information Protection and Electronic Documents Act (PIPEDA) or any governing provincial legislation in its place. Employers must be careful to limit their enquiries to essential information and ensure that privacy is maintained at all times.

Generally speaking, justifying the need to ask for sensitive personal health data is a touchy subject. For example, in British Columbia, employees do not need to produce a doctor’s note as proof that they have received the vaccine. Similarly, in Alberta, employees do not need to provide a medical note or record of immunization in order to take paid vaccination leave.

Employers can avoid infringing on their workers’ privacy but still get confirmation of their entitlement to leave by asking for confirmation of vaccine appointments instead.

Employers may also suggest that workers share their vaccination status if they wish, on a voluntary basis.  Workplaces may only obtain workers’ personal information with consent and must inform them of why it is being collected and how it is being used.

Any documentation or information relating to workers’ health should be kept confidential, secure, and cannot be disclosed to third parties. Employers cannot share which members of staff have gotten vaccinated with customers and clients. Instead, visitors may be assured that public health and safety guidelines are being followed and it is safe for workers to provide services.

This is an unprecedent HR and legal challenge for businesses. Confusion is expected and is also very understandable. Employers are advised to stay up to date on their latest provincial legislation relating to COVID-19 and to seek professional counsel if they are unsure about the laws related to vaccination in the workplace.

 

ABOUT PUNEET TIWARI
Puneet Tiwari is Legal Counsel & Legal Claims Manager at Peninsula Canada. He has practiced as an employee side employment lawyer for several years while also running his own small business.

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