Can Employers Demand Vaccination
While employers can make vaccines necessary in their policies, whether those requirements would hold up if challenged is another matter, says Hermie Abraham, an employment lawyer and the owner of Advocation Professional Corporation.
Because the federal and provincial governments have so far refrained from making the COVID-19 vaccine mandatory, its unlikely that workplace policies that do so will stand if tested in court or through arbitration, Abraham says.
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Requiring a medical procedure such as a vaccine could be considered a breach of privacy or a human rights violation, says Lior Samfiru, partner at Samfiru Tumarkin LLP.
A legal kerfuffle between Torontos St. Michaels Hospital and the Ontario Nurses Association is a recent legal precedent for whether employers can mandate vaccinations, both Abraham and Samfiru say.
In 2018, an arbitrator struck down a policy by St. Michaels to force nurses who had not received the flu vaccine to wear surgical masks following a grievance filed by the ONA.
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Arbitrator William Kaplan called the policy unsustainable and illogical given poor evidence that surgical masks prevent transmission of the flu and that the hospital did not require unvaccinated visitors to mask up, among other reasons.
Can An Employer Require An Employee To Be Vaccinated
Employers can only require their employees to be vaccinated where:
- a specific law requires an employee to be vaccinated
- the requirement is permitted by an enterprise agreement, other registered agreement or employment contract , or
- it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis .
One or more of these circumstances can apply when an employer is requiring an employee to be vaccinated. For example, an employer could rely on a state public health order that requires their employee to be vaccinated to give the employee a lawful and reasonable direction not to work unless they are vaccinated.
Employers should also consider how protections for employees under anti-discrimination laws may apply. Learn more at How does a requirement to be vaccinated interact with anti-discrimination laws?
An employer may in certain circumstances be required to direct employees to get vaccinated to comply with obligations under a work health and safety law. Information on work health and safety obligations is available from Safe Work Australia. Go to Commonwealth, state or territory workplace health and safety regulators to learn what work health and safety laws apply.
Employers should get their own legal advice if theyre considering making coronavirus vaccinations mandatory in their workplace.
Some employees may have questions or concerns about getting vaccinated. You can:
Asking Candidates Whether They Are Vaccinated During A Job Interview
Businesses can only ask candidates if they are vaccinated when this is justified by the requirements of the role. For example, if a business decides, following a COVID-19 exposure risk assessment, that certain work cannot be performed by an unvaccinated worker, it may be reasonable to ask about an applicants vaccination status. This information will need to be collected and handled according to the Privacy Act.
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Can I Make Vaccination A Condition Of Returning To The Office
No while many employers wish to introduce such a policy to protect the health and safety of their employee population, such a policy would carry risk in regard to complaints by employees for breach of their data protection rights, and the employment law risks outlined below. Employers should follow public health guidance, and update their risk assessments to ascertain other ways in which the workplace may need to be altered to protect health and safety in the workplace.
Discrimination risks: There is significant risk of discrimination claims arising if employees are treated differently based on vaccination status. As discussed above, discrimination could arise on grounds of disability for employees unable to receive vaccination on medical grounds or on grounds of religion if a certain religious group disapproves of vaccinations.
Constructive dismissal: Refusing an unvaccinated employee access to the office and requiring them to work from home indefinitely may amount to a significant breach of their contract or unreasonable conduct by the employer, entitling the employee to resign and consider themselves unfairly dismissed. However, generally employees would be expected to raise a grievance before resigning.
Grievances: There is also a strong likelihood of grievances from employees where they feel they are being unfairly restricted from attending the office.
Gathering And Processing Vaccination Status Data
The Information Commissioners Office has provided some helpful guidance to assist employers in ensuring that they have a lawful basis under UK GDPR upon which to process details of the vaccination status of employees.
An employers reason for checking or recording employees vaccination status must be clear and necessary, and employees must be informed as to what data will be gathered and how it will be used. The sector you operate in, type of work your staff do and health and safety risks in your setting will all be important factors to consider.
Employers should also consider conducting a Data Protection Impact Assessment which will identify ways in which to mitigate the risks of processing data in this manner. The ICO has made it clear that collecting information about vaccination status must not result in unfair or unjustified treatment of employees.
There are practical issues to consider too. The information regarding vaccination status must be accurately recorded and stored securely. Additionally, the data processed in relation to vaccination status should only be the minimum required to achieve the aims and should not be held for longer than necessary. For example, for those who are medically exempt, the guidance confirms that an employer should record the fact they are exempt, but should not record the clinical reason for the exemption.
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Saskatchewan Health Authority Employees
The Saskatchewan Health Authority will also begin implementation of a phased-in proof-of-vaccination policy for all employees starting on Oct. 1.
Health officials said the policy is needed due to the significant risks arising from the highly transmissible COVID-19 variant and is a necessary step in protecting the health-care team, patients and residents and preserving health-care services.
The province said the SHA is releasing more details later in the week to all health-care staff, contractors and others affected by this policy.
Health-care workers who do not provide proof of vaccination will be required to participate in a monitored testing program at their cost, unless they have received an approved accommodation based on the Saskatchewan Human Rights Code.
The province said there are only six acceptable proof-of-vaccination forms that can be used.
One is the wallet-sized card received at the time of immunization.
Also acceptable are:
- A printed copy of your MySaskHealthRecord vaccine certificate
- A screenshot of your MSHR vaccine certificate saved to your device
- An earlier version of your MSHR COVID-19 vaccine certificate
- A COVID-19 vaccine printout from Saskatchewan Health Authority Public Health
The sixth method that is still to come is a QR code/MySaskHealthRecord vaccine certificate uploaded to SK Vax Wallet.
Businesses requiring proof of vaccination also require an ID from anyone aged 18 and older.
Collecting By Lawful Means
3.60 The term lawful is not defined in the Privacy Act. It is lawful for an organisation to destroy or de-identify unsolicited personal information if it is not unlawful to do so. That is, if the destruction or de-identification is not criminal, illegal or prohibited or proscribed by law. Unlawful activity does not include breach of a contract.
3.61 Examples of collection that would not be lawful include:
- collecting in breach of legislation, for example:
- collecting via computer hacking
- collecting using telephone interception or a listening device except under the authority of a warrant
- requesting or requiring information in connection with, or for the purpose of, an act of discrimination
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Can An Employee Refuse To Be Vaccinated
Some employees may have questions or concerns about getting vaccinated. You can find information about COVID-19 vaccines from the Department of Health, including answers to common questions about the safety and effectiveness of the vaccines.
An employee might refuse a direction to be vaccinated even if they are required to under a specific law, agreement or contract, or after receiving a lawful and reasonable direction. In these situations, an employer should ask the employee to explain their reasons for refusing the vaccination. An employee may have a legitimate reason for not being vaccinated. For example, the employee could have an existing medical condition that means vaccination is not recommended for them. Employees should speak to their doctor if they have concerns about receiving a vaccination because of a medical condition.
If you have concerns about the safety of COVID-19 vaccines:
- call the National Coronavirus Hotline to get reliable information from the Australian Government.
If the employee gives a legitimate reason for not being vaccinated, the employee and their employer should consider whether there are any other options available instead of vaccination. This could include alternative work arrangements, such as asking the employee to perform different duties or to work from home. Find out more at Alternative work arrangements.
Resolving workplace issues
Get guidance on resolving workplace issues at:
Then Why Do Many Businesses Remain Hesitant About Requiring Vaccinations
A Rockefeller Foundation and Arizona State University survey of more than 1,300 medium and large companies in the United States and Britain found that more than half said they would require employees to show proof of vaccination. Nearly nine out of 10 said they planned to encourage or require employees to get vaccinated, the survey found.
But while it is legal to mandate vaccinations, many companies are avoiding the thorny issue. Some companies dont want to create mandates until the coronavirus vaccines have received full approval from the Food and Drug Administration, which has so far granted only emergency-use authorization to the three vaccines in use in the United States. Others, including hospitals, have refrained from issuing guidance to avoid lawsuits.
Houston Methodist, a hospital in Texas, is facing a lawsuit from more than 100 people after it told employees they all had to be vaccinated by Monday. Dozens of staff members gathered outside the hospital systems Baytown location this month, holding signs that read Vaxx is Venom and Dont Lose Sight of Our Rights in protest of the policy. Nearly 200 employees were suspended, and the hospital said if they did not get vaccinated by June 21, it would start the process to end their employment.
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What If The Employee Has Religious Or Other Objections
Although there has been a large uptake of vaccinations in Ireland, there may still be employees that are unvaccinated due to religious beliefs. The Employment Equality Acts 1998-2015 protect employees against discrimination on grounds of religion. A small number of religious groups disapprove of vaccinations altogether. Most religions do not disagree with vaccination in principle, but as a result of other beliefs in those religions, followers may refuse some types of vaccination because of their ingredients . It is worth noting that none of the vaccinations that have been rolled out in Ireland to date contain any animal-derived ingredients.
Vegans may also disagree with vaccinations that contain animal-based ingredients or have been tested on animals. Ethical veganism has been found by a UK Employment Tribunal to amount to a belief capable of being protected under the UKs equality legislation. In Ireland, however, there is no general belief ground under the EEA, so protection under Irish equality law is unlikely to extend to cover non-religious beliefs such as ethical veganism.
People with religious beliefs against the vaccination may be protected under the EEA. Mandatory vaccination policies are not permitted and would likely to be held to be indirectly discriminatory.
Hipaa And Proof Of Vaccine Status
Vaccination information is classed as PHI and is covered by the HIPAA Rules. However, HIPAA only applies to HIPAA-covered entities healthcare providers, health plans, and healthcare clearinghouses and their business associates. If an employer asks an employee to provide proof that they have been vaccinated in order to allow that individual to work without wearing a facemask, that is not a HIPAA violation as HIPAA does not apply to most employers.
It would not be a HIPAA violation for an employer to ask an employees healthcare provider for proof of vaccination. It would however be a HIPAA violation for the employees healthcare provider to disclose that information to the employer unless the individual had provided authorization to do so. If an employer is running their own vaccination program and an employee chooses to have their vaccine privately, that individual may have to authorize their healthcare provider to disclose certain information about their vaccine to their employer as proof that they have been vaccinated.
Asking about vaccine status would not violate HIPAA but it is possible that other laws could be violated. For instance, requiring employees to disclose additional health information such as the reason why they are not vaccinated could potentially violate federal laws. Furthermore, several states have passed laws or are considering laws that prohibit employers in the public sector from asking employees about their vaccine status.
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What About Pregnant Employees
There has been conflicting advice in this area, but the most recent advice for pregnant women has changed and vaccination is now recommended, albeit that since 3 September, the HSE is only offering the Pfizer.
Due to the conflicts in guidance since the introduction of the vaccination programme, some women may be hesitant about accepting vaccination. So employers should consider if they want to make exceptions for employees who fall within this category.
Lawful And Reasonable Directions To Get Vaccinated
Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable is fact dependent and needs to be assessed on a case-by-case basis. Just because it may be lawful and reasonable to give a direction to one employee, that doesnt mean it will automatically be lawful and reasonable to give the same direction to another employee or to all employees.
For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies .
There are a range of factors that may be relevant when determining whether a direction to an employee is reasonable. Things to take into consideration include:
- the nature of each workplace
- the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community
- the terms of any public health orders in place where the workplace is located
- the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant
- each employees circumstances, including their duties and the risks associated with their work
- whether employees have a legitimate reason for not being vaccinated
- vaccine availability.
When undertaking this case-by-case assessment, it may also be helpful as a general guide to divide work into 4 broad tiers:
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Does An Employer Need To Consult When Implementing A Workplace Policy About Coronavirus Vaccinations
Employers may be considering whether a workplace policy about coronavirus vaccinations is necessary for their workplace.
Before implementing a new workplace policy or changing an existing policy about vaccinations, employers should consider their workplace and employees circumstances and whether they need legal advice about their obligations.
Most workplaces are covered by either an award, enterprise agreement or another registered agreement. All awards and enterprise agreements have a consultation clause requiring employers to consult with employees and any representatives when an employer intends to implement significant workplace changes. Some registered agreements, employment contracts or existing workplace policies may also require employers to consult. You can find more information about consultation and cooperation in the workplace here: Consultation and cooperation in the workplace Best practice guides Fair Work Ombudsman.
This means that before introducing or changing a workplace policy about vaccinations, employers should review any applicable award, agreement, employment contract or existing workplace policy to find out:
- whether they need to consult under that document
- who they need to consult with
- how they need to consult about the proposed workplace change.
You can find more information on specific coronavirus WHS issues
Vaccinations For Contractors And Temporary Employees
For workers employed by contract firms or temporary help agencies, the staffing agency and the host employer are joint employers and, therefore, both are responsible for providing and maintaining a safe work environment. The extent of the responsibilities the staffing agency and the host employer have will vary, depending on the workplace conditions, and should be described in their contract .
If you plan to offer vaccination at your workplace, consider providing vaccination to all people working at the workplace, regardless of their status as a contract or temporary employee. What is most important is to encourage everyone at the work site to be vaccinated, no matter what their work arrangement is. If you do not plan to or are unable to offer work site vaccination, consider providing information to those at the workplace about how to explore options for vaccination in the community.
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