Can I refuse to tell my employer my vaccination status as it infringes my privacy rights?
Canada as a whole has been a very compliant society with respect to the uptake of vaccines as protection from Covid-19. Statistics from the Government of Canada reported February 13, 2022 indicate that 84.06% of Canadians five years and older are fully vaccinated, with 44.04% of the total population being fully vaccinated with a booster.
The Government of Alberta, other provincial governments and the federal government have implemented vaccine mandate policies that permit businesses and others to ask for proof of vaccination, a negative Covid-19 test, or a valid medical exemption.
We have seen with the recent trucker convoy to Ottawa and bridge and border blockades just how passionate some people are in resisting vaccination against Covid-19, however. Many of these people have been let go or put on unpaid leave by their employers for failure to vaccinate, without a valid exemption.
One of the claims of these individuals is that an employer’s question as to their vaccination status is invalid as an infringement of their privacy rights. These privacy rights are claimed under provincial privacy legislation as well as under the general common law privacy rights all citizens enjoy in a just and democratic society.
Are privacy rights a viable shield to resist disclosure of vaccination status to an employer?
While there seems to be little doubt that an employer’s question as to vaccination status is an infringement of privacy rights of their employees, in that generally an employee is entitled to keep their private medical information private, the courts and other adjudicative bodies such as arbitrators have, for the most part, held that such an infringement is relatively minimal. “[The pandemic] is an unusual situation in which preventative measures override what in other circumstances would be improper intrusion onto the privacy and bodily integrity rights of their members” (Richmond (City) v. International Assn. of Professional Firefighters, Local 1286, [2022] BCCAA No. 3at para 90).
These decisions have also found the infringement of privacy rights is justified as part of the employer’s right to implement reasonable rules and regulations and the employer’s duty to maintain a safe work environment. Further, where the employer is obligated to enforce a vaccine mandate, requiring disclosure of an employee’s vaccine status is necessary. Employers are therefore entitled to seek disclosure of an employee’s vaccine status to the extent necessary to administer a vaccine policy in the workplace.
These authorities also require that the employee’s disclosure as to their vaccination status be safeguarded by the employer by, for example:
- limiting access to the information to those on a “need to know” basis;
- storing the information securely, perhaps separate and apart from the employee’s general personnel file;
- expunging the information from the employee’s file when vaccine verification measures are determined to no longer to be necessary; and
- otherwise disclosing the information regarding vaccination status only with the employee’s prior consent.
The bottom line therefore is “no”, an employee cannot refuse to disclose their vaccination status on the basis that it infringes their privacy rights, but the courts have built in protections to safeguard the confidentiality of that disclosure.
If you have questions regarding employment law matters, please CONTACT Osuji & Smith Lawyers and Evan Oikawa, and we will be happy to assist you.
