On vaccine disclosure, safety trumps privacy
Human rights law irrelevant to the issue
Increasingly, I have been getting questions about employees’ vaccination rights. One reader asked whether her employer could ask whether she is vaccinated. “I believe that is not their business and, in any event, is a violation of my privacy rights,” she wrote.
If I were to put it simply: safety trumps privacy. If the employer is asking in order to determine whether the employee can be in close contact with others in deciding where they should be working and in how close quarters, the question is perfectly acceptable and the staff that is being questioned must answer. Refusal to answer, or lying about your vaccination status, would be cause for dismissal without severance. Even worse, if an employee lies about being vaccinated when they are not and, if others in close contact with that employee contract COVID-19, they would face a significant lawsuit.
In the course of discussing this issue, readers have cited the Nuremberg Convention, human rights legislation and privacy rights in asserting that employers have no right to require vaccination or to ask whether employees are vaccinated. The Nuremberg Convention and human rights law are both entirely irrelevant to the issue and, although it is a violation of privacy rights, the rights impacted are comparatively trivial and give way before the statutory right of an employer to maintain a safe workplace.
Here are some of the other questions I received in my inbox over the past few weeks.
Q: How long must I keep a disabled employee’s job open for them?
A: You have to keep it open until they return or the employment becomes frustrated legally. That means you have to keep it open, usually, for about two years and then have to show that the employee’s medical prognosis is such that they will be unable to return to work for an indefinite period. If both tests are met, you can fire them with only the amount of severance required by employment standards and no risk of human rights repercussions.
That length of time will vary depending upon the length of service. In other words, the job must be kept open for an extended period for long-serving employee. If you have LTD coverage, you also generally have to keep the job open longer. There is no precise answer as every case is fact dependent, but these are the guidelines.
Q: I was cleared in a background check and started a new job. A month later, my employer told me that the background check had just revealed new information and fired me. Can they?
A: That depends upon precisely what you agreed to before you started. If your employment depended on a background check and that check revealed new information, which was relevant to the job (not information which was not), then the company would be at liberty to fire you.
However, if you were told that the check was complete and you had passed it, without any suggestion that it was ongoing, then they could not fire you as a result of the new information. Of course, in every case, if they find that you lied during your interview in a manner which is material to the job and that they would never have hired you if aware of the truth, then you can be fired for cause whenever that information comes to the attention of the employer. That would be quite independent of whether you had agreed to any background check.
Q: My employee just passed probation but is performing poorly. Can I fire her?
A: It is difficult to fire employees based upon incompetence. Generally, there has to be a wilful element for there to be cause for discharge. Rather than wasting months of her salary and management time attempting to, likely unsuccessfully, build up a case, why not simply terminate now. As a short-service employee, there is likely little severance entitlement.
THE RIGHTS IMPACTED ARE COMPARATIVELY TRIVIAL.
Got a question about employment law during COVID-19? Write to Howard at levitt@ levittllp.com. Howard Levitt is senior partner of LSCS Law, employment and labour lawyers with offices in Toronto and Hamilton. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.