Wednesday, September 27, 2023

Is It Legal To Ask For Proof Of Vaccination

Is My Employer Required To Tell Me Why They Are Requesting My Vaccination Status Information And What They Are Going To Do With My Information

Is it legal to ask for proof of vaccination? | KVUE

If your employer requests your consent to collect vaccination status information, they are required to be transparent about why the information is being collected, and how it will be used, in line with APP 1.

Your employer must also take reasonable steps to notify you of the matters set out in APP 5. These include:

  • the purpose of collection

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.

Can Businesses Require Proof Of Vaccination

In a word, yes, says Eric Feldman, professor of law and medical ethics and health policy at the University of Pennsylvania Carey Law School. And, he adds, the idea of businesses requiring vaccination cards to enter or use their services is not much of a controversial topic in the legal community.

Its quite clear that restaurants, airlines, cruise ships, your local café, your local university, the school that you may choose to send your child to are all within their legal bounds in asking you to demonstrate that you or your child has been vaccinated, he says.

In some ways, its along the lines of the commonly seen edict of no shirt, no shoes, no service, or even dress codes. Generally, private businesses can decide who they are willing to serve and what kinds of requirements they impose on folks who enter so long as they are not being discriminatory based on things like race, gender, or religious affiliation.

And requiring vaccine cards, in most cases, is not likely to be seen as discriminatory, though some may view it as more of an imposition than needing to wear shoes or a shirt.

Sure, a restaurant can say, Youve got to wear shoes. Sure, a restaurant can say, Youve got to show us youre vaccinated, Feldman says.

» READ MORE: These are the Philadelphia restaurants that require proof of vaccination.

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Ontario Human Rights Commission Releases Policy Statement On Covid

Overview of Policy and Requirements Regarding Mandatory Vaccination

As the highly contagious Delta variant of COVID-19 continues to spread, and following a whirl of announcements from federal, provincial, and municipal governments on vaccination policies, employers across Canada are instituting mandatory COVID-19 vaccination policies in their workplaces.

On August 13, 2021, the Government of Canada announced that it will require all federal public servants and all employees in the federally regulated air, rail, and marine transportation sectors to be vaccinated no later than the end of October. On August 20, 2021, the Medical Officer of Health for the City of Toronto issued a press release strongly recommending that Toronto employers institute workplace vaccination policies. Then, on August 24, 2021, the Ontario government filed O. Reg. 577/21, which requires businesses and organizations to operate in compliance with any advice, recommendations and instructions issued by either the Office of the Chief Medical Officer of Health or by a medical officer of health after consultation with the Office of the Chief Medical Officer of Health. Medical officers of health in a number of public health units in Ontario have since issued various recommendations on workplace vaccination policies.

Human Rights Implications

The following is a summary of the Commissions Policy:

Human Rights Code, RSO 1990, c H.19, s 45.5.

Ibid, s 45.6.

Unreasonable Or Impracticable To Collect Directly From The Individual

Can a business require proof of vaccination for COVID

3.65 Whether it is unreasonable or impracticable to collect personal information only from the individual concerned will depend on the circumstances of the particular case. Considerations that may be relevant include:

  • whether the individual would reasonably expect personal information about them to be collected directly from them or from another source
  • the sensitivity of the personal information being collected
  • whether direct collection would jeopardise the purpose of collection or the integrity of the personal information collected
  • any privacy risk if the information is collected from another source
  • the time and cost involved of collecting directly from the individual. However, an APP entity is not excused from collecting from the individual rather than another source by reason only that it would be inconvenient, time-consuming or impose some cost to do so. Whether these factors make it unreasonable or impracticable will depend on whether the burden is excessive in all the circumstances.

3.66 The following are given as examples of when it may be unreasonable or impracticable to collect personal information only from the individual concerned:

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What Does App 3 Say

3.1 The APPs distinguish between an APP entity collecting solicited personal information and receiving unsolicited personal information .

3.2 APP 3 deals with two aspects of collecting solicited personal information:

  • when an APP entity can collect personal information the requirements vary according to whether the personal information is or is not sensitive information, and whether the APP entity is an agency or an organisation
  • how an APP entity must collect personal information the same requirements apply to all APP entities and to all kinds of personal information

3.3 In summary, the principles that apply are:

  • an agency may only solicit and collect personal information that is reasonably necessary for, or directly related to, one or more of its functions or activities
  • an organisation may only solicit and collect personal information that is reasonably necessary for one or more of its functions or activities
  • in addition to the above requirements, an APP entity may only solicit and collect sensitive information if the individual consents to the sensitive information being collected, unless an exception applies
  • an APP entity must solicit and collect personal information:
  • only by lawful and fair means , and
  • directly from the individual, unless an exception applies

Disclosure Of An Individuals Vaccine Status By A Healthcare Provider

Healthcare providers can ask if a patient has been vaccinated as asking the question in no way violates HIPAA. It would be permitted for the healthcare provider to share vaccine status information with another covered entity or business associate, provided the disclosure was permitted under the HIPAA Privacy Rule for treatment, payment, or healthcare operations or if authorized to do so by a patient.

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Can My Employer Ask Pre

The EEOC has stated that administering the COVID-19 vaccine to employees or requiring proof of vaccination from employees does not implicate Title II of the Genetic Information Nondiscrimination Act . However, as stated above, pre-vaccination medical screening questions are likely to elicit information about not only a persons disabilities, but also their genetic information, such as family members medical histories, which would violate GINA.

GINA does not prohibit an individuals own health care provider from asking questions about genetic information, but does prohibit an employer or a health care professional working for the employer from asking questions about genetic information.

Can A Business Require Proof Of Vaccination For Customers

More workplaces are requiring vaccines for employees: is it legal?

Both Senate Bill 968 and Governor Abbott’s Executive Order GA-39 from August 25, 2021, address this issue. They both say that a business that receives public funds or a license or permit from the state of Texas may not require customers to provide proof of a COVID-19 vaccination.

Senate Bill 968 states the following:

A business in this state may not require a customer to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the business. A business that fails to comply with this subsection is not eligible to receive a grant or enter into a contract payable with state funds.

Notwithstanding any other law, each appropriate state agency shall ensure that businesses in this state comply with Subsection and may require compliance with that subsection as a condition for a license, permit, or other state authorization necessary for conducting business in this state.

Senate Bill 968 also states that Texas businesses are permitted to follow current public health guidelines regarding COVID-19 screening:

This section may not be construed to: restrict a business from implementing COVID-19 screening and infection control protocols in accordance with state and federal law to protect public health

GA-39 states the following:

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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

If An Individual Discloses Their Vaccination Status Voluntarily Do They Forgo Hipaa Protections

No. If an individual voluntarily discloses their vaccination status to a HIPAA Covered Entity or Business Associate, the information they have provided is still protected under the HIPAA Security and privacy Rules. If an individual voluntarily discloses their vaccination status to an entity not covered by HIPAA, the disclosure is not subject to HIPAA Rules.

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Hipaa May Apply To Some Self

Some employers are self-insured. When it comes to the insured part of the company, these employers are covered entities under HIPAA because they are basically considered insurance providers. There are several ways to operate self-insured plans, such as using a third party to manage the benefits so that the employer is completely hands-off. The employer is fully self-insured and either does or does not have access to protected health information.

Self-insured employers should be aware of their responsibilities under HIPAA . But when it comes to COVID-19 screening, employers are not health care providers screening employees or visitors.

Employers must keep the information away from the insurance side of their activities, as well as from the personnel/HR activities. The COVID-19 screening should be its own activity with separate records.

Exceptions To Vaccine Requirements


Entities that require proof of vaccination can also choose to allow unvaccinated people to do something in lieu of getting a vaccine.

For instance, health care workers who opt out of flu vaccination requirements might have to request a medical or religious exemption to do so, and wear a mask at work when influenza cases in the community are high.

And states can set conditions such as mandatory education of parents about the dangers of disease and the safety of vaccines, or certification that they have a religious objection before allowing unvaccinated children to attend school.

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What We Already Disclose

Vaccinations and medical exemptions are recorded on the Australian Immunisation Register operated by the federal government.

Information from the register is used to create immunisation history statements and COVID digital certificates. This information can then flow through to check-in apps to let us prove our vaccination status when we are asked to.

Its understandable to think our health information should be secret kept between us and our doctor. But the law principally the Australian Privacy Act and health records laws in many states allows it to be collected by other people if certain conditions are met. And its not only the doctors clinic and other health services where this information is allowed to move around.

For instance the No Jab, No Play legislation in Victoria, designed to increase immunisation rates in young children, means proof of their vaccination status must be given in order for the child to access kindergarten.

Adults have to disclose information about medical conditions and disabilities to organisations like VicRoads in order to obtain a driver licence. We might even disclose a health condition to our employer so reasonable adjustments can be made to help us keep working.

So there are many examples of disclosing health information well beyond the doctors clinic walls, and all of them are provided for by law.

Collecting Directly From The Individual

3.64 APP 3.6 provides that an APP entity must collect personal information about an individual only from the individual, unless one of the following exceptions apply:

  • for all APP entities, it is unreasonable or impracticable for the entity to collect personal information only from the individual
  • for agencies, the individual consents to the personal information being collected from someone other than the individual
  • for agencies, the agency is required or authorised by or under an Australian law, or a court/tribunal order, to collect the information from someone other than the individual

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Employees And Vaccination Status

Regulations making it compulsory for those working in care homes to be vaccinated against Covid-19 will come into force on 11 November 2021. The government is also expected to consult on mandatory vaccination against Covid-19 for wider healthcare staff.

Mandatory vaccination will require employers to gather and process the vaccination status of their employees and in doing so will be processing personal data and special category data. While there may be a legal obligation to do this, the UK GDPR together with the Data Protection Act 2018, requires an employer as a data controller to still ensure that the processing is fair and transparent.

In addition, firms should carefully consider how to manage mandatory vaccination issues in relation to job applicants, because employers can only lawfully make pre-employment health and disability enquiries, which would include asking questions about vaccination status, in certain prescribed circumstances.

For employers in other sectors where vaccination is not mandatory, there may still be a need to gather and process the vaccination status of employees to conduct health and safety risk assessments. It may still be lawful to process this data in the absence of a statutory obligation, but careful consideration should be given to identifying a suitable legal basis.

What Are My Rights If My Employer Requires A Covid

Answering legal questions regarding proof of COVID vaccination

Under the ADA, employers are permitted to have a qualification standard that includes a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace. Since a vaccination requirement may screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.

In other words, if youre unable to get vaccinated due to a disability, and the employer concludes that you would pose a direct threat to the health or safety of yourself or others, then your employer should determine whether you may be entitled to a reasonable accommodation such as allowing you to perform your job remotely. This is the same type of analysis that employers make when physically excluding employees from a worksite due to current COVID-19 diagnosis or symptom. While some workers are entitled to work from home, others may not be able to do so. You should ask your employer what you need to do and if a reasonable accommodation can be made for you.

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How Is This Related To The Americans With Disabilities Act

An employer that is implementing policies regarding mandatory vaccinations must follow the Americans with Disabilities Act . The ADA applies to private employers with 15 or more employees and to most government employers, employment agencies, and labor unions. The ADA may also apply to employers with 15 or less employees if that employer receives federal funds.

The ADA prohibits covered employers from discriminating against people with disabilities in the full range of employment-related activities. A mandatory vaccination policy may implicate provisions of the ADA, which has restrictions on when and how much medical information an employer may obtain from an applicant or employee.

Is Asking For Proof Of Vaccination Discriminatory

If the workplace or job requires that the employee be vaccinated, asking for proof of vaccination would not be discriminatory, says Marie-Hélène Jetté, head of the labour and employment law group for Langlois Lawyers in Montreal, with some exceptions provided for in human rights legislation.

Human rights laws ban discrimination and require employers to make accommodations to the point of undue hardship, notes the publication HR Insider in an article on requiring employees to provide proof of COVID-19 vaccination. For example, employers arent generally allowed to ask employees or job applicants about their disabilities requiring proof of vaccination may discriminate against employees who refuse to be vaccinated because of their religious beliefs, and also on the basis of creed — a system of non-religious beliefs that may be integral to a persons self-identity and standard for conduct, which arguably may include the anti-vaccination movement.

Read more: COVID-19 vaccine passport development must have legal and ethics expert input: medical journal

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