Right To Stop Unsafe Work
Workers have the right to stop work or refuse to carry out work if they believe that doing the work would expose them, or anyone else, to a serious risk to health or safety from an immediate or upcoming hazard.
In general, unless vaccination is needed for health and safety reasons, work is unlikely to be unsafe solely because it is done around unvaccinated workers.
Can Employers Require New Hires To Show Proof Of Vaccination
Read on for answers to these and other questions concerning COVID-19 vaccination in the workplace
With vaccinations for COVID-19 ramping up and a return to workplaces looking likely for the fall, at least, but the pandemic not yet quelled, the issue of requiring new hires to show proof of vaccination raises its head. Heres a sampling of what employers may require, or be entitled to do.
Read more: Ontario pharmacists now allowed to administer COVID-19 vaccines via injection
Are You Experiencing Ongoing Symptoms Of Long Covid
Some people who have had COVID-19 are experiencing Long Covid a series of ongoing symptoms including extreme fatigue, breathlessness, brain fog and/or loss of taste or smell which may come and go. Some people are still experiencing these ongoing symptoms as long as six months or more after contracting COVID-19.
While Long Covid is not yet a formal diagnosis, it is likely that as more research is conducted it could be recognised as a long term health condition and may ultimately qualify as a disability under the Equality Act 2010.
We recommend that employers conduct individual risk assessments with any staff who are experiencing Long Covid and to make reasonable adjustments for these staff.
Northern Ireland government has also published advice.
See also the specific advice for NJC staff on local annual leave schemes or the new statutory government scheme.
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Can An Employment Offer Be Made Conditional On A New Hire Being Vaccinated For Covid
Since the vaccine is widely available to the public an employer can likely require this, Atlantic law firm McInnes Cooper said in a blog, in the same way employers can require pre-employment drug and alcohol testing and medical and criminal record clearances in certain circumstances. But the firm recommends that COVID-19 vaccination, and proof of it, as a condition of the employment offer and part of the onboarding process be made clear in advance to prospective hires. The requirement should be part of a broader vaccination policy reflecting the employers vaccination standard in the workplace, and not applied only as part of a new hiring process.
What If I Have To Go To My Regular Workplace
Regardless of the removal of some or all restrictions in parts of the UK, and moves towards a gradual return to the workplace for those who have been working from home, your employer must have carried out a risk assessment to ensure that your workplace meets government and Health and Safety Executive guidelines and do everything they reasonably can to reduce and control the risks of transmission within the workplace.
Read Gov.uks up to date guidance on what employers need to do to make workplaces COVID-secure.
For more information on what employers should do to keep their workplaces safe, please read our How to work safely leaflet .
Employers should consult staff and union safety reps on any proposals regarding making changes to the work environment, activities, attendance levels and any review or changes to risk assessments, prior to those changes being implemented.
If you have concerns about attending your workplace speak to your local UNISON rep and discuss any issues with your employer.
Employers must, in particular, consider the risks to staff who are most vulnerable to infection, so please refer to our advice for those are Black, disabled, over 70 or have an underlying health condition.
If you work in Scotland, Wales or Northern Ireland please refer to your own countrys advice pages.
Specific guidance for members working in healthcare, social care and schools can be found in the sector pages can be found in the links at the top of the page.
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Can I Record Information About My Employees Vaccine Status
The advice set out above in relation to COVID status also applies to checking and recording your employees vaccine status. However, there are some additional factors to consider.
Your reason for recording your employees vaccination status must be clear and necessary. If you cannot specify your use for this information and are recording it on a just in case basis, or if you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it.
The sector you work in, the kind of work your staff do and the health and safety risks in your workplace should help you to decide if you have legitimate reasons to record whether your staff have had the COVID-19 vaccine. For example, if your employees:
- are legally required to be vaccinated against COVID-19 to perform their role
- work somewhere where they are more likely to encounter those infected with COVID-19 or
- could pose a risk to clinically vulnerable individuals,
this may form part of your justification for collecting employee vaccination status. However, if you only keep on record who is vaccinated for monitoring purposes and are not legally required to collect this information, it may be more difficult to justify holding this information.
If the use of this data is likely to result in a high risk to individuals or you will be processing health data on a large scale, then you need to complete a data protection impact assessment before you start processing the data.
Can An Employee Refuse To Tell Their Employer About Their Vaccine Status
Under HIPAA , employers are permitted to ask employees about their vaccine status, but employees are not required to provide that information to their employer. There could, however, be consequences for failing to provide that information to an employer. An employee who refuses to say whether they have received the COVID-19 vaccine may well be treated in the same way as an individual who has refused the vaccine on non-medical or non-religious grounds.
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Business Partners To Convince Building Your Business Reputation
The Workplace Challenge was launched in February 2021 by Business Partners to CONVINCE a global communication and education initiative to promote COVID-19 vaccine uptake among private sector employers and employees. The partnership also plays an integral role in the broader, global CONVINCE .
Businesses that sign up to the Challenge agree to:
- listen to employees needs and concerns about the impact and prevention of COVID-19
- follow the latest public health guidance to protect themselves, their employees, their workplace, their customers, and their community from COVID-19
- promote vaccine literacy based on the latest scientific evidence of vaccination benefits and risks
- encourage vaccine confidence and uptake
- advocate for accessible, equitable, and timely vaccination of employees
- engage with communities, schools, faith-based organisations and public health leaders to stop the spread of COVID-19
Is Asking An Employee If Theyre Vaccinated A Hipaa Violation What Employers Need To Know
Insights
10.19.21
Are you fully vaccinated? This seems to have become a million-dollar question that employers want to pose to their workers, but confusion abounds regarding the legal contours of this deceptively dangerous question. Many employers continue to wonder about the legal implications of asking an employees vaccination status. While the EEOC has confirmed that you can lawfully ask employees their vaccination status without violating federal anti-discrimination laws , what about other privacy laws? Specifically, what about the often-misunderstood HIPAA, seemingly cited by anyone who disagrees with any sort of COVID-19 safety protocols? This Insight will untangle the myths from reality and provide employers with practical and legally correct guidance on this subject.
What is HIPAA?
HIPAA has unfortunately entered popular culture in recent times thanks to misguided individuals believing the law somehow creates a magic shield exempting them from complying with many pandemic-related requirements. Most recently, many employees have incorrectly cited HIPPA as grounds for withholding their vaccine status from their employers. But what is HIPAA, and does it really prevent you from asking employees and workplace visitors about whether they have been vaccinated against COVID-19?
Who Does HIPAA Apply to?
Perhaps the most common misconception about HIPAA is that it applies to all businesses and employers. It does not. The Privacy Rule governs only covered entities:
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What If Childcare Is A Problem
If you need to stay at home to look after your children, you are legally entitled to unpaid dependant leave. However, many UNISON members will be entitled to paid dependant leave due to agreements negotiated with their employer.
We advise that you explain your situation to your employer, and we would expect your employer to be reasonable in accommodating your circumstances. Some employers have specific arrangements to support parents during the current pandemic.
What Should My Employer Do If Any Staff Test Positive For Covid
If you work in Scotland, Wales or Northern Ireland you should go your own countrys advice pages. See the links at the top of the page.
Employers in England must ensure any of their staff self-isolate if they have
- tested positive for coronavirus
- been in close recent contact with someone who has tested positive and received a notification to self-isolate from NHS Test and Trace
Employers should take all reasonable steps to prevent infection by regular cleaning and by encouraging good hygiene practice.
If there is more than one case of COVID-19 in a workplace, employers should contact their local health protection team to report the suspected outbreak who then will then undertake their own risk assessment, advise the employer on what further steps may be required. Employers may need to keep staff informed about Covid-19 cases in their workplace but individuals should not be named.
Further advice on what employers should do, including the support they should provide for staff who are required to self-isolate is available on the government website.
There may be additional steps your employer is required to take depending on the sector you work in.
Health and social care staff may also be subject to different requirements.
Read Also: Where Can I Get The Shingles Vaccine Shingrix
Is It A Hipaa Violation To Ask For Proof Of Vaccine Status
Posted By HIPAA Journal on May 25, 2021
According to several media sources, there appears to be a degree of confusion about the purpose of HIPAA, who it applies to, and whether asking someone if they have had a COVID-19 vaccine constitutes a HIPAA violation.
The confusion was highlighted recently when, on May 18, 2021, Rep. Marjorie Taylor Greene, was asked whether she had been vaccinated, as she had refused to wear a mask on the House floor in breach of House rules. Greene told reporters that asking her about her vaccine status was a HIPAA violation, but this was not correct as HIPAA does not apply in such situations.
It is not only Rep. Greene who is unsure about the purpose of HIPAA and who it applies to. Several organizations have also raised concerns that asking employees to provide proof of being vaccinated against COVID-19 in order to avoid wearing a facemask, maintain social distancing, or self-isolate after exposure to an infected person may also be a violation of HIPAA.
Does The Same Apply With Regards To Negative Covid Tests And Hipaa
Yes. If an employer requests evidence of a negative COVID test before allowing an employee to return to work, or a university requests evidence of a negative COVID test before allowing a student to resume in-person tuition, neither is in violation of HIPAA law provided neither is a HIPAA Covered Entity nor Business Associate.
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Sharing Vaccine Misinformation In The Workplace
Before any vaccine is approved for use in New Zealand, it must meet international standards and local requirements for quality, safety and efficacy. We should all play our part, by relying on trustworthy information about vaccines.
Sharing vaccine misinformation could, in some circumstances and in some workplaces, potentially amount to misconduct in the workplace. Such instances are likely to be rare. Employers should seek legal advice before taking any action for such conduct.
Legal Questions Around Vaccines At Work
Can an employer ask if someone has been vaccinated? Can someone be fired for not taking the vaccine?
As vaccinations continue to ramp up around Canada and many workplaces are seriously considering a return to normal, Canadian HR Reporter spoke with Neena Gupta, a labour lawyer at Gowlings in Waterloo, Ont., about what employers can and cannot do when it comes to vaccines.
Q: Can an employer ask if an employee has been vaccinated?
A:Typically, an employer cannot ask about any kind of medical-related information unless it is relevant to some aspect of the job or some benefit that the employee is getting.
Many of the employers who have been asking around vaccinations fall into two large distinct buckets. The first bucket is health care, day care, vulnerable sector areas where arguably as part of the health and safety plan, vaccination is a key component. You may have a requirement that a nurse be vaccinated against measles, mumps and rubella a daycare worker may have to be vaccinated against other transmissible diseases. Thats one bucket.
The other area where were seeing this happen is where employers are saying: We will give you paid time off to get your vaccine appointment but then that is predicated upon you providing us proof of you getting the vaccine, because thats the eligibility requirements for getting the paid time off.
Q: What are the privacy laws around all of this?
Q: Can an employer require an employee to be vaccinated?
Neena Gupta
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Compulsory Vaccinations For Workers
This week, MPs approved compulsory vaccinations for care home staff in England, which means that from October, all care home workers ) will be required to receive two doses of a Covid-19 vaccine, unless they have a medical exemption. The Government has also previously said that it is considering making jabs compulsory for NHS workers.
With all Covid-19 restrictions being relaxed on Monday, 19th July, the majority of employers will understandably be very keen for their staff to benefit from a vaccine. Having a full complement of vaccinated employees will mean a dramatic reduction in the risk of the virus and less concern for the employer when it comes to transmission in the workplace. That being said, it might not necessarily be as simple as they think.
Below, we have answered several employment law questions from workers concerning Covid-19 vaccines.
Asking Workers Whether They Are Vaccinated
Generally, a worker does not need to disclose their vaccination status to a business.
If certain work cannot be done by an unvaccinated worker, a PCBU can ask a worker about the workers vaccination status. If the worker does not disclose their vaccination status, the business may assume the worker has not been vaccinated for the purposes of managing health and safety risks. However, businesses should first inform workers of this assumption, and what will happen if the worker is not vaccinated or does not disclose their vaccination status.
Employees cannot be redeployed or disadvantaged for refusing to disclose their vaccination status, unless particular work cannot be done by unvaccinated employees.
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What Else Do We Need To Do If We Process The Covid Status Of Staff Customers Or Visitors
If you are implementing COVID status certification, you must be open and transparent. You must make sure that people understand why you need to collect this information, and what youre using it for.
You should ensure that the collection of this data is secure. You should respect any duty of confidentiality you owe, and you should not disclose a persons COVID status unless you have a legitimate and justifiable reason to do so.
If you record this information, you must ensure that you do not hold the information for longer than is necessary, and do not use the data in ways people would not reasonably expect. If you are conducting a one-off check for visitors or customers, you probably only need to make a check of someones COVID status and would not need to retain any information. You would need to clearly justify any records you keep or retention of information.
You should only request the minimum amount of data necessary for your purpose. For example, if an individual has a clinically approved exemption status, you should not be routinely requesting further information about the clinical reason behind the exemption.
You should regularly review whether you still need to process COVID status data.
For further reading, see our tips for looking after your customers personal data when completing vaccination and COVID status checks.
Can My Employer Ask If Im Vaccinated
Weve had a lot of calls recently asking whether employers can ask employees if theyve had the vaccine for COVID-19. Some employees believe that asking about vaccination status is a violation of HIPAA rights. Some employees want to know if an employer can ask for proof of vaccination, or just has to take the employees word for it. Some employees want to know if, beyond asking about vaccination status, an employer can require employees to be vaccinated or provide incentives for vaccinated employees.
It may surprise some people to learn that the answers to all of these questions are not new. The COVID virus and vaccine are relatively new to the world and to the realm of employment law, but the rules and regulations surrounding vaccination status and the other laws that come into play are well-established and relatively clear.
Gold Star Law is not a professional medical organization and is not qualified to give medical advice. Gold Star Laws position is that people should follow the advice of their doctors and medical professionals.
If you need help with an employment law problem, contact us.
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