Can employers legally require staff to show proof of COVID vaccination?

May 20 2021, 1:00 pm

Written for Daily Hive by Puneet Tiwari, Legal Counsel & Legal Claims Manager at Peninsula Canada. 

With workers now getting vaccinated across Canada, some employers may want to keep track of who has received the vaccine in their workplace.

This information might be useful in making health and safety decisions, assuring visitors that the workplace is safe, or as proof of entitlement to vaccination leave.

However, there may be rules about what information employers can require and there are privacy and human rights considerations when it comes to managing vaccinations at work.

Getting proof of vaccination for paid leave

Depending on the province, there is different guidance on how to approach vaccinations in the workplace. In some, it is up to the discretion of the employer whether they want to provide paid or unpaid vaccination leave to their workers. Employers may ask for proof of vaccination, but it is important to note that they can only request proof in the form of a certificate provided by the applicable Public Health unit. Employers are not able to ask for proof of vaccination in the form of a doctor’s or nurse’s note.

Editor’s Note: Under new paid sick leave rules in BC, people are entitled to 3 hours of paid leave to be vaccinated, and up to 3 days paid sick leave if it’s COVID-19 related. 

Getting proof of vaccination for health and safety reasons

Employers may want to ask workers for proof of vaccination for workplace health and safety reasons. Once a certain number of staff have been vaccinated, employers may want to recall workers back to the workplace. They might also want to let customers and clients know that their workplace is safe to visit.

Privacy considerations

Vaccination records are personal and private medical information. If an employee chooses to share this information, employers must ensure that it is kept confidential in order to stay compliant with privacy laws. Employers may not disclose workers’ individual vaccination status.

How to ask for proof relating to vaccination

Employers are advised to create a policy on vaccination in the workplace. In this policy, employers can specify what proof workers are expected to provide and how they are expected to do this in accordance with their provincial legislation. It is important to communicate this policy to all staff and make sure that it is easily available to them for reference.

If employers want to know whether workers have received the vaccine, they may ask employees to share this information if they want to, on an optional basis.

Human rights considerations

Vaccines can be a sensitive topic and some workers may not be able to get them. For these reasons, employers should be careful how their approach this subject in the workplace. Policies and communications relating to vaccines should not make workers feel pressured to get one or that this decision might impact their job.

Since vaccination has not been made mandatory by governments, employers cannot require this and should be careful to avoid discriminating against workers who do not get a vaccine.

For example, scheduling shifts only for vaccinated workers could open the business up to risk of a discrimination lawsuit. If employers want to make vaccination mandatory in their workplace, they must consider all applicable legislation and ensure that this requirement is justifiable and made in good faith.

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