With recent rollouts of COVID-19 vaccines ramping up and employers gearing up for their staff to return to the office in the fall, many employers are questioning whether they are allowed to require new hires to show proof of vaccination.
According to a blog article published by the Atlantic law firm McInnes Cooper, since the COVID-19 vaccine is widely available to the public, an employer can ask for it – the same way an employer can require pre-employment drug and alcohol testing and medical and criminal record clearances in certain circumstances.
We can see a number of judicial decisions which have shown this, such as the 2020 decision in Ontario, Re Participating Nursing Homes and ONA (Covid-19 Sick Pay). In this case an arbitrator decided that the the employer was within its right, and its need under the Occupational Health and Safety Act, to prevent employees who could pose a risk from attending the workplace. In this case it was a nursing home, and they were concerned with protecting residents and employees, and stopping the spread of COVID-19. Employers have a duty to maintain a safe work environment and take all reasonable precautions to protect the health and safety of their workers.
It is important, however, for this requirement to be balanced against provincial human rights requirements. There must be provisions for workers who may not be able to be vaccinated due to documented disability such as a previous allergic reaction to a vaccine, or for a religious reason. These should be reviewed on a case-by-case basis.
McInnes Cooper also recommends that the requirement for the COVID-19 vaccination, and its proof as a condition of the offer of employment, be made clear in advance to job applicants. Therefore, the authors of the article suggest that this requirement should become part of a broader vaccination policy reflecting the employer’s vaccination standard in the workplace, and not applied only as part of a new hiring process.
Furthermore, according to Marie-Hélène Jetté, head of the labour and employment law group for Langlois Lawyers in Montreal, asking for proof of vaccination would not be discriminatory if the employer requires its employees to be vaccinated, with some exceptions provided for human rights legislation. For example, in Quebec the Ministry of Health issued a decree that requires some healthcare workers to provide proof that they have been vaccinate against COVID-19. Those who refuse will be reassigned or put on leave without pay.
COVID-19 vaccination may be required for certain jobs, or to attend a specific place of work, added Jetté. “I think you can ask a candidate if he is vaccinated and if so, ask for the proof,” she said.
McInnes Cooper also suggests that employees can be required to provide proof of COVID-19 vaccination, just as they can be required to provide certain other medical evidence. “The keys will be the reasonableness and proportionality of the personal information you require employees to provide,” states the firm’s blog. “In the policy, require [employees] provide a medical note or certificate from a medical practitioner confirming they received the vaccination. In addition, require the note or certificate specifying the brand of vaccine they received; this information could be important once more is known about COVID-19 vaccinations, for example, how long the protection will last.”
At the same time, requesting proof of vaccination or a vaccination certificate is a collection of personal health information which can raise privacy concerns, according to a blog article posted on the website of the legal firm McCarthy Tétrault LLP. “Employers should be mindful of the applicable privacy legislation (if any) that applies to them.”
As such, the employment agency Peninsula Group recommends employers implement a vaccine records policy that “should include details on your reasons for collecting the data, the appropriate privacy protection measures you’ll follow to store, secure, and destroy such data.”
The vaccination requirements and regulations could change quickly, as new medical evidence and information becomes available. “The law is responsive to the scientific context. Evidence is important. And evidence is changing quite fast,” Colleen Flood, a law professor at the University of Ottawa said. “One of the things that would be a slam-dunk is evidence that the (COVID-19) vaccine prevents transmission.”