Saturday, September 23, 2023

Can You Ask Employees If They Have Been Vaccinated

Collecting Storing And Sharing Information About An Employees Vaccination Status

Can employers require the COVID-19 vaccine and can they legally ask if you’ve been vaccinated?

Information will need to be collected and handled according to the Privacy Act.

Businesses must take reasonable steps to make sure information about an employees vaccination status is collected, used and stored lawfully.

The obligations under the Privacy Act include making sure:

  • that workers are aware of how this information will be used
  • any intended recipients of the information
  • that workers know why it is being collected
  • that it is stored securely
  • that information reasonable steps are taken to ensure the information is accurate and up to date before it is used.

Your Employee Returns From A High

You cannot forbid your employee to travel to, or take a holiday in, a country with an orange or red travel advice . Your employee does have to return in time.

Does your employee have to self-isolate? You must continue to pay wages, if they can work from home.

If they cannot work from home, you do not have to pay them wages for the days they miss. Point this out to your employees. Your employee can take extra days off to cover the quarantine period, if you agree to this.

Federal Law Supports Vaccine Mandates

Regardless of how you approach this, compliance with federal law allows you to mandate Covid vaccination as long as you allow exemptions for medical reasons and sincerely held religious beliefs. If you’re a federal contractor, you must come into compliance and have all employees vaccinated by December.

The courts have consistently upheld a business’s right to mandate vaccines for employees as long as you have the proper exceptions for religion and medical issues.

Employment attorney and Fisher Broyles partner Eric Meyer says that courts don’t generally second-guess company safety protocols, so even if you aren’t subject to the federal mandate, you can feel confident that a court would uphold your mandate.

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Can Employers Require Employees To Be Vaccinated

No individual is required to have a vaccine, as they have the choice whether or not to be vaccinated, but there can be consequences for employees who refuse a vaccine on non-medical or non-religious grounds depending on state regulations. However, just as an employer can require all employees to wear a uniform in the workplace, an employer can have a policy that requires employees to wear a facemask during a pandemic. They are also within their rights to refuse entry to the workplace if a mask is not worn contrary to a workplace policy in order to protect other members of the workforce or customers.

The Civil Rights Act of 1964 requires employers to provide reasonable accommodations for employees who have strongly held religious beliefs, and the ADA requires employers to provide reasonable accommodations for employees who have an underlying disability under the Civil Rights Act of 1964. Accommodations therefore need to be made for individuals who have refused a vaccine on these grounds.

With President Biden’s Vaccine Mandate This May Become An Important Question


As more and more businesses require vaccines , this message I received from a reader didn’t surprise me. She writes:

Now that the federal government is requiring contractors to be vaccinated in order to work on a government contract, how do I ask about someone’s vaccination status without running afoul of HR laws and can we safely not hire for that reason alone?

This is an excellent question, so I put it to a couple of employment attorneys. Here’s what they say:

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Do Employees Have To Be Paid For The Time To Get Vaccinated Against Covid

Where an employer can require an employee to be vaccinated against coronavirus , the employer should cover the employees travel costs and give the employee time off work without loss of pay if the appointment is during work hours.

Employers should consider any applicable awards, agreements, employment contracts or workplace policies, in case they include rules about these types of issues.

Even where an employer doesnt require their employees to be vaccinated against coronavirus, they can still discuss work adjustments, leave arrangements or incentives with their employees to support them getting vaccinated. These arrangements could include:

  • requesting and taking leave
  • starting work later or finishing early
  • working from home
  • providing paid time off for their employees to get vaccinated against COVID-19.

If An Employees Agreement Is Terminated Because They Are Not Vaccinated

If all other reasonable alternatives that would allow the employee to keep working have been exhausted, recent changes to the Employment Relations Act require employers to provide employees with at least four weeks paid written notice of termination.

It is highly unlikely to be a good faith action for an employer to direct that a worker use annual leave , or any other entitlements that the employee has, during this paid written notice period.

This change will only apply to employees who do not have a notice period, or whose notice periods are shorter than four weeks. If an employee has a notice period longer than four weeks in their employment agreement, that longer notice period will continue to apply.

If employees get vaccinated or are otherwise permitted to perform work under a COVID-19 order, during this four week notice period, the termination notice is cancelled, unless this would unreasonably disrupt the employers business. For example, where a business has hired a replacement employee and there is no other work available in the business.

If an employee loses their job because they decide not to get the COVID-19 vaccination, there may also be support available from Work and Income.

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Recommendations For Employee Vaccination Programs

The state of the pandemic, and the state of vaccination in the United States and globally, is rapidly evolving. A plan for workforce vaccination or timetable for returning employees to a particular workplace must be sensitive to these changes and how they impact an employers workforce and business. This is not a situation where a single vaccination program will be appropriate for all employers. To the contrary, the complex interactions between federal, state and local lawsin combination with rapidly changing circumstances and the specific needs of each businesss workforce, customers and operationsnecessitate that employers carefully consider potential vaccination programs in consultation with counsel. Nonetheless, the following are considerations and features that are generally advisable for COVID-19 vaccination programs:

  • Assess the potential impact of a vaccination policy on your business. What impact would such a policy have on your operations? Would it enable employees to work more safely and effectively? Would certain worksites or positions benefit from a policy more than others?
  • Assess the potential reception to different policies by your employees, customers, visitors, business partners and the public. In creating a policy, give thoughtful consideration to feedback on the policy, including objections.
  • What Happens If You Object To A Vaccine Required By Your Employer

    Can employers ask employees, customers if they’ve been vaccinated?

    Just because you have a valid medical disability or theological objection to receiving a coronavirus vaccine doesn’t mean your employer has to let you continue working under the same conditions you’ve been used to. Companies are required to make “reasonable accommodations,” which could include allowing the employee to work remotely or take a leave of absence. President Biden’s mandate allows workers to present a negative COVID-19 test once a week to continue their employment, though they may have to pay for those tests themselves.

    If you don’t have an ADA-recognized medical condition and can’t convince authorities of valid religious grounds for refusing the COVID-19 vaccine, your employer has the right to terminate your employment. And it’s doubtful you’d be able to claim unemployment benefits because you were fired “for cause.”

    Some companies are also considering imposing fines on unvaccinated workers refusing to get the shot. This could include raising health care costs, withholding raises and restricting access to workplace amenities. For instance, the NBA says it won’t pay unvaccinated players who miss games.

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    This Information Is Provided By

    Ministry of Social Affairs and Employment, SZW

    The government has taken measures to protect you and your staff against the coronavirus. For example, working from home and proper ventilation. Make sure you observe the rules for protecting your employees’ medical records. Did you know, for instance, that privacy legislation forbids you to register whether or not employees are vaccinated?

    Employment Actions If An Employee Is Unvaccinated

    Employers should take care to be fair and reasonable in their engagement with employees regarding vaccination, and work through processes with employees in good faith before deciding on any outcome.

    Employers cannot require any individual person to be vaccinated, however, being unvaccinated may have implications for an employees job.

    If certain work can only be done by vaccinated workers, employers should set a reasonable timeframe for employees to decide if they will be vaccinated.

    If an employee cannot work during this time, special paid leave should be considered, especially in the short term while employers and employees discuss what happens next.

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    What If An Employee Lies About Their Vaccination Status

    That is cause for dismissal. Also, if an employee lies about their vaccination status and is permitted to work closely with others and then someone can prove that they then contracted COVID-19 from that person, the dishonest employee will be liable for damages to a person contracting the virus. If that third party dies or is permanently disabled, those damages could be in the millions of dollars.

    A Business Can Also Decide Work Requires Vaccination

    Can I Ask My Employees If They Have Been Vaccinated ...

    Outside of Government vaccination mandates, businesses can assess whether specific work in their workplace requires vaccination if a risk assessment identifies this is necessary for work health and safety purposes.

    To assess whether work needs to be done by vaccinated workers, employers may use a health and safety risk assessment process that they consider more suitable for their business.

    Businesses can also use the Vaccination Assessment Tool to make decisions about vaccinations in the workplace. This has been made through regulations under the COVID-19 Public Health Response Act 2020.

    Use of the tool is optional, and businesses can still choose to undertake a risk assessment approach. The tool will not override any risk assessments that have already been done.

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    Can Employees Refuse To Work Based On Anxiety Over Covid

    Some employees are sending in medical notes, insisting that they should not be returning to the office because attending the office , makes them anxious or stressed.. That does not provide a defence unless there is a genuine psychiatric disability such as an anxiety disorder. What I recommend is that the employers doctor call the employees doctor and determine whether there is a genuine operative qualifying disability. There seldom will be. Alternatively, you could send them for an independent medical examination with a psychiatrist for an assessment.

    Can A Business Ask For Proof Of Vaccination

    Subject to state laws, businesses can ask for customers to demonstrate proof of vaccination, but due to laws such as ADA cannot flatly refuse to provide a service to the customer if they cannot prove their vaccination status. Instead, if a customer has not been vaccinated or refuses to disclose their vaccination status, businesses can require the customer to wear a mask or can organize an outside delivery of their purchase. If the customer refuses to agree to the compromise, businesses can then refuse to provide a service on health and safety grounds.

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    Don’t Require People To Put Their Vaccine Status On Their Rsum

    Anything medical does not belong on a candidate’s résumé, so don’t expect that vaccinated candidates will note it on their résumé or their LinkedIn profile. You can ask, as Bischoff and Schwartz advised, but don’t require them to be up front.

    Likewise, don’t reject someone for adding that information. Even though medical information doesn’t belong on a résumé, it’s understandable that someone would list an environment where companies seek vaccinated employees,

    Overall, you may find it difficult to get enough candidates, so now is not the time to be super picky. You can train just about anyone to do just about anything, but convincing an unwilling person to be vaccinated may be impossible. It’s a candidate’s market out there, so be up front about vaccines and plan to train.

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    Put The Vaccine Requirement On The Application

    Can businesses ask their employees whether they’ve been vaccinated?

    You don’t need to wait until an interview to let job candidates know that this job requires a Covid vaccine. Employment attorney and HR consultant Kate Bischoff recommends putting language like this on your application: “This position requires that you be vaccinated against Covid-19 unless you need a reasonable accommodation for religion or a health-related need.”

    Then, after you make a job offer, you ask for verification of vaccination or begin the process of working out a reasonable accommodation for someone with a medical or religious exemption.

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    The Americans With Disabilities Act Excuses Some People From Mandatory Vaccination

    The Americans with Disabilities Act requires employers to provide “reasonable accommodations” to workers with medical conditions that would make them unable to get a vaccine. The US Equal Employment Opportunity Commission recognizes long COVID as a disability under the ADA.

    According to the US Department of Health and Human Services, these civil rights protections can’t be waived — even during emergencies.

    Can Compulsory Covid

    All businesses have a legal duty to provide their employees with a safe working environment. As a result, based upon the sector that the business operates in, it could be justified for introducing mandatory vaccination provisions based on health and safety grounds. Although employers would have to be able to demonstrate this . It would also have to show that the reduction in the risk of rolling out compulsory vaccination measures will justify such interference with an employees basic rights.

    If an employer is insisting that their workforce is vaccinated but some workers are still unsure, the staff members should flag and discuss their concerns with their employer and see what can be agreed upon.

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    How To Ask Coworkers

    If you want to ask coworkers because you have a preexisting condition or immunodeficiency, a better approach may be to go to management or HR, says Pynes.

    You should advise them of the condition and ask for an accommodation, which may include working in a private office, remote work, or other physical partitions or separation, she says.

    If you plan to ask your coworker directly, Pynes suggests saying something like, Ive been pretty locked down and careful, especially since the most recent surge. Would you mind sharing if you are vaccinated, so I can continue to take precautions?’

    Basically, make it a health and safety concern, rather than a judgment or political statement, she says.

    Cappelli suggests sharing your status first. This isnt like asking, What do you think about the Eagles chances this season?’ he says. This is a question you are going to act on, which impacts the person who gives you the information.

    Starting a conversation is a better way to get people to talk. Instead of saying, What do you think about vaccinated? you could say, You know, I got vaccinated early on, and hope they respond and tell you whats going on with them, which is the social norm for most people, says Cappelli.

    Workplace Vaccination Supports And Policies

    Can employers ask staff whether they have been vaccinated ...

    The goal of Ontarios COVID-19covid 19 vaccination plan is for everyone in Ontario to be able to get a COVID-19covid 19 vaccination if they want one.

    Workers who are considered employees under the Employment Standards Act have the right to take job-protected infectious disease emergency leave if they need to take time off work to get vaccinated or because of side effects after vaccination.

    An employer cannot penalize an employee in any way for taking or planning on taking an infectious disease emergency leave.

    The OHSA and the ESA do not directly address vaccination or the enforcement of employer vaccination policies for workers. There may be other statutes and considerations that apply to a workplace vaccination policy. Getting legal advice before developing or implementing a vaccination policy can help employers understand the implications. This might include advice on topics such as:

    • human rights and accessibility

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    Etiquette For Asking If Your Employees Are Vaccinated

    April 9, 2021

    Asking your workers whether or not they got their COVID-19 vaccine shot is not necessarily a good idea.

    If you are going to require employees to disclose their vaccination status, you need to consider the nature of the workplace, said Adam LaRoche, a Calgary-based lawyer with Osler, Hoskin & Harcourt LLPs employment and privacy and data management groups.

    In Canada, 7.25 million doses of COVID-19 vaccines have been given, The Canadian Press reported Apr. 9. Two per cent of Canadas population have been fully vaccinated.

    Whether or not an individual is vaccinated is considered sensitive personal health information, LaRoche said in an interview. That said, once the majority of the population is vaccinated, there may be circumstances under which an employer is justified in asking workers for their vaccination status.

    In any case, the employer would have to keep information on the vaccination status of individual workers confidential, only releasing aggregate statistics to the work force as a whole.

    But LaRoche says employers need to consider the following three things before they even ask workers whether or not they have received the vaccine:

    An employer should develop a policy that considers these three issues before collecting vaccination status from workers, said LaRoche.

    Even if you are justified in collecting that data from workers, the information must be safeguarded and protected from being accidentally released to people without a need to know.

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