Can employers tell workers to get vaccine?
Will your boss be able to tell you to get the COVID-19 vaccine?
It’s a heavy question, and likely to be a controversial one, according to Saskatchewan legal and privacy experts.
Saskatoon labour lawyer Steve Seiferling said there are no clear cut answers as to whether employers can require workers to get the vaccine.
“First of all, it depends on the workplace and the nature of the work,” said Seiferling, who is the managing lawyer at Seiferling Law.
Seiferling said employers in the health field would have a more compelling reason to require workers to get the vaccine. Then there’s the question of workplaces where employees are interacting with the public, and here it gets more grey.
“If you take, for example, a grocery store, or you take, for example, an educational setting. Yeah, there’s a potential issue with people interacting with large numbers of people and interacting with the public on a regular basis, but the question would be: Is that enough for the employer to require a vaccine?” said Seiferling.
Seiferling said such a requirement would also likely be subject to exemptions. An employee could be medically unable to get the vaccine, or could object to getting it based on religious or moral grounds.
Seiferling said government organizations will be subject to more strict applications of federal and provincial laws, but private companies have more room to make decisions on what’s required at their workplaces.
If an employer does require workers to get a vaccine, then comes the question of whether they will require proof, and if they will store that information. Saskatchewan’s Information and Privacy Commissioner, Ron Kruzeniski, said requesting to see a vaccination certificate would be considered collection of personal health information.
Once an employer does collect information, it is their responsibility to store it securely. While private organizations are not subject to the Freedom of Information and Protection of Privacy Act, they are subject to orders made under The Public Health Act. Federally regulated businesses are also subject to the Personal Information Protection and Electronic Documents Act. Health trustees, such as doctors offices and dentists, are subject to the Health Information Protection Act.
Kruzeniski recommended that employers collect the least amount of information possible. An example would be asking workers to show a vaccination certificate, but choosing not to make a copy of it. Kruzeniski called this the “data minimization principle.”
Kruzeniski said his hope is that after vaccines make their way into the public and society returns to normal, the need to collect such data would go away.
Kruzeniski said there is a “natural tension” between protecting the public and ensuring personal privacy, and that the pandemic has heightened that tension.
“Those questions are still relevant during a pandemic, but the public safety issue has a much more significant impact on how all of us react, and how I guess privacy commissioners sort of balance that tension between public safety and encouraging privacy,” said Kruzeniski.
One thing Seiferling could say with confidence is he expects the issue of an employer requiring workers to get vaccinated will eventually make its way into a courtroom.
“I suspect there’s going to be litigation on this. I suspect somebody is going to take this to court somewhere in Canada at some point in time in the not too distant future, where an employer has made the choice, and it’s likely going to be a private employer,” said Seiferling.