As the Alberta healthcare system struggles under the weight of the fourth wave, the question of whether to introduce vaccine mandates in the workplace is more pressing than ever. By now, the safety and efficacy of COVID-19 vaccines are well-documented, and with the Government of Alberta’s introduction of digital proof of vaccination, it is now much easier for an employer to verify an employee’s vaccination status.
But does this mean an employer can ask an employee to show proof of vaccination?
The short answer – yes, BUT…
While employers have an underlying obligation to provide a healthy and safe workplace, any steps taken must be balanced against privacy concerns and human rights. Without comprehensive legal precedent yet established, many employers are navigating uncharted waters when it comes to requiring proof of vaccination in the workplace. While some employers may be choosing to incentivize vaccines rather than mandate them, depending on the size of your workforce and the nature of your industry, a voluntary vaccine policy may not be enough to protect the health and safety of your team.
Simply put, based on the information available to date, it seems clear that ensuring your employees are vaccinated will increase workplace health and safety and go a long way to easing anxieties workers may have about returning to the workplace. On the other hand, much remains unknown as we await the courts and regulators to establish legal precedent on human rights and privacy.
Here are some key considerations we recommend employers keep in mind when evaluating whether to require proof of vaccination.
1. Vaccine Records Must Be Treated Like Any Other Personal Information
Employers should remember that privacy laws apply equally to vaccination status as they would any other type of personal information. This means employers can only collect (minimal) employee health information if it is required for two purposes: to confirm fitness to work and to protect the health and safety of employees in the workplace. Collecting information about an employee’s vaccination record may be considered a reasonable workplace safety measure, but there are several factors to consider:
- Necessity – is requiring proof of vaccination necessary to maintain workplace health and safety, or are there other options, such as a negative test result or work from home?
- Effectiveness – will requiring proof of vaccination meaningfully reduce the risk of COVID-19 transmission in the workplace to others?
- Proportionality – are the associated risks to individual privacy proportionate to the intended benefits? Can the collection be minimized in any way?
In addition, any documentation related to an employee’s vaccine status must be kept confidential, secure, and not be disclosed to third parties. Employers can circumvent this by choosing to only view the vaccination document (along with ID) rather than copying and keeping it.
2. Be Prepared to Establish a Clear Policy and Explain Why Proof of Vaccination is Required
Employers who wish to collect personal health information like vaccine status will need to communicate clearly why collecting the information is reasonably necessary and how the information will be used, stored, and managed to guarantee privacy compliance. If proof of vaccination will be required for new hires, this must also be part of a broader company-wide policy and should be communicated in advance to prospective candidates. If your workforce is unionized, you will also need to account for additional considerations that adhere to the terms of the collective agreement. Finally, you may also want to consider establishing a policy to provide paid leave to allow employees adequate time to get their shot.
3. Ensure a Process to Assess Accommodation Requests
In the end, given the extreme risks posed by COVID in a closed workspace environment and the very effective protections offered by the vaccine, requiring proof of vaccination from employees is likely not a violation of current privacy laws. However, an employee can simply refuse to provide their vaccine status – what does an employer do then? The first thing to consider is whether it is reasonable for the non-compliant employee to complete their work from home rather than in a common workspace. For positions requiring fieldwork or interactions with customers or clients, this is not a viable alternative, but it could work for many administrative positions. However, even if working from home can be accommodated, you will also need to consider when it will be safe for the employee to return to the workplace if they cannot prove their vaccinations status.
Individuals who refuse to provide proof of vaccination because of a legitimate medical condition or religious belief are protected from discrimination under the human rights code. Employers will need to have a process in place to assess claims on an individual basis should an employee refuse vaccination on these grounds, but this is not a simple task. Medical conditions can only be assessed by medical experts, not the employer, so that needs to be incorporated into the process. Keep in mind as well that having a ‘personal belief’ about the vaccine is not grounds for a complaint under the human rights act. The courts have a high standard for defining a legitimate religion or creed from personal opinion.
Ultimately, employers may, for various reasons, make decisions about letting employees go and can do so if those decisions align with their organizational values and are compliant with the applicable laws and standards. What is abundantly clear, is that going forward employers need to tread extremely carefully to ensure vaccination policies and programs are designed in a way that treat employees with respect and minimize organizational risk.
Establishing workplace policies around employee vaccination has created unprecedented challenges for employers across sectors. If you are looking for additional support in navigating your company vaccine policies, the expert HR and Privacy teams at Cenera can help.
Reach out to us today or read our free resource covering ‘Back to Office Protocols’ to learn more.
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