Over the past several weeks, many employers have made the decision to implement mandatory vaccination policies for their workforce. These employers are requiring their employees to be fully vaccinated in order to return to the workplace. In some instances, employees face termination if they are not fully vaccinated.
The Ontario government just announced the use of a vaccine certificate to enter select non-essential businesses. A person will have to prove their “double-vaxxed” status or face being barred entry to select establishments. (See my colleague Jennifer Hunter’s blog for further information and discussion on the Ontario vaccine certificate.)
Missing from the list of businesses that will have to verify a person’s vaccination status are retail, office and manufacturing businesses. On Friday, September 3, the Medical Officer of Health for the Middlesex-London Health Unit, Dr. Chris Mackie, “strongly recommended” that all businesses implement workplace vaccination policies that require all employees, contractors and volunteers who will have in-person contact to be vaccinated against COVID-19.[1] As pressure mounts for these businesses to implement mandatory vaccination policies, one factor that must be considered are the privacy implications for employees if such a policy is adopted.
Many clients have asked “can we even ask an employee for their vaccination status”? The answer to that is yes, you can. Under the Occupational Health and Safety Act, an employer has the duty to take every precaution reasonable in the circumstances for the protection of a worker.[2] However, an employer needs to be careful about how they ask for vaccine information, what information is requested, and what the employer does with that information once it is provided.
When drafting the mandatory vaccination policy, employers would be wise to address the following:
- what information will be collected;
- who will have access to the employee’s vaccination information;
- details about the retention and storage of the vaccination information; and
- duration for how long the policy will remain in effect.
All employers want to protect the health and safety of their employees. But it is equally important that they ensure that they are not over-zealous in doing so and fail to also protect their employees’ privacy.
For assistance in drafting mandatory vaccination policies that respect employees’ privacy interests, contact Alysia M. Christiaen, member of Lerners’ Privacy, Information and Data Security Group.
[1] Accommodations are to be made for those exempted due to medical conditions and other protected grounds under the Ontario Human Rights Code.
[2] Occupational Health and Safety Act, RSO 1990, c O.1, s 25(2)(h).
