Disclosure of COVID-19 Vaccination Status
Posted on 9/7/2021
Currently, the following employers have mandated disclosure of CSU 52 members' COVID-19 vaccination status:
CSU 52 has reviewed our legal counsel’s opinion which generally supports the employers’ requests for mandatory disclosure.
The issue basically reduces to a matter of balance. Does the employer’s responsibility, to provide a safe worksite, trump the member’s privacy rights?
The short answer is yes. For your information, counsel’s guiding principles follow.
- If you disagree, the Union’s advice is to obey and grieve. There may be some extenuating circumstances that need to be considered.
- An untruthful answer can result in discipline.
- An individual can bring their own complaint about an employer to the Office of the Information and Privacy Commissioner of Alberta or the Alberta Human Rights Commission.
- To be clear, the policies and procedures announced and implemented by the City of Edmonton to date only have to do with disclosing COVID-19 vaccination status – they are not extending to COVID-19 testing or requiring vaccination at this point.
- Privacy laws entitle employers, including public bodies like the City of Edmonton, to collect information that is reasonably necessary for the employer to conduct its activities or manage the employment relationship, including ensuring the health and safety of the workplace;
- Arbitrators and courts have recognized employers have a legitimate interest in employee medical information in many circumstances and an employee's right to medical information privacy is not absolute;
- When assessing an employer's demand for medical information, as with other intrusions on employee privacy, arbitrators will take a balancing of interests, proportionality approach and attempt to strike the right balance between an employee's privacy rights and the employer's interests;
- The novel nature of COVID-19, and the medical evidence about COVID-19, the highly transmissible Delta variant, and the potential for severe complications will weigh in the balance and, consistent with the precautionary principle underlying occupational health and safety laws, will favour employer's having access to more information than may ordinarily be required;
- Employers have an obligation to identify workplace hazards, such as COVID-19 transmission, and take steps to eliminate the hazard in so far as is reasonably practicable;
- Requesting information about employees' vaccination status and requesting employees to either confirm their vaccination status or submit to regular COVID-19 testing are steps that align with an employer's obligation to maintain a safe workplace and eliminate the hazard of COVID-19;
- Although requesting vaccination status or testing from an employee is an intrusion on privacy, it is not a significant intrusion and, on balance, is likely to be justifiable during the pandemic because of the serious safety interests at stake;
- Employees can refuse intrusions on their person (i.e., vaccination or testing for COVID-19); however, there can be employment consequences for these decisions - an employer cannot force an employee to get vaccinated but an employer may be able to exclude an employee from the workplace until the employer is reasonably satisfied the employee is fit for work and does not present a safety risk. This could include an unpaid leave of absence;
- Policies must address relevant human rights protections and provide for accommodation up to the point of undue hardship. However, requesting such an exemption does require proof that the reason falls under a protected human rights ground.