How should an employer handle an employee returning to the office who refuses to answer the COVID-19 screening questions or disclose if they've been vaccinated?
Question: How should an employer handle an employee returning to the office who refuses to answer the COVID-19 screening questions or disclose if they've been vaccinated?
Answer: It is well established under occupational health and safety legislation that employ-ers have a general duty to ensure the health, safe-ty and welfare of employees at work. This duty includes protecting employees from communi-cable disease as much as reasonably possible. This interest must be balanced with competing interests of individuals who refuse to disclose information for privacy reasons.
When weighing the invasiveness of a CO-VID-19 screening questionnaire and the risk associated with COVID-19 against competing privacy concerns, a questionnaire is likely to be considered a reasonable step for employers to take towards satisfying their obligation to keep the workplace safe. If an employee refuses to answer COVID-19 screening questions, this would likely constitute insubordination. The employer would have grounds for progressive discipline and could likely send the employee home, potentially without pay.
Guidance surrounding vaccinations, on the other hand, and the ability to request informa-tion relating to vaccinations, is rapidly evolving. Only a short time ago, the prevailing opinion was that employers could not require employ-ees to disclose their vaccination status as this is considered personal medical information and is subject to privacy interests and legislation. However, a number of factors have resulted in a substantial shift in opinion.
Recent developments driving this change include the rising case numbers in Canada, the federal government’s announcement that mandatory vaccinations will be required for all federal government employees and federally regulated employers, and the introduction of a vaccination passport system in some Cana-dian jurisdictions. These announcements from the federal and provincial governments signal a shift in the balancing of competing interests and what may be considered “reasonable” in the circumstances.
The evolving nature of COVID-19, and the recent announcements in response to it, sug-gest that there may be an ability to require dis-closure of an employee’s vaccination status, though it will be heavily dependent on the jurisdiction and workplace in question, along with the active case numbers and future de-velopments. Given the rapidly evolving land-scape, employers should seek legal advice in their jurisdiction prior to implementing any policies requiring employees to disclose their vaccination status.
Amy Gibson is an associate with MLT Aikins in Saskatoon, practising general labour and em-ployment law. She can be reached at (306) 956-6994 or [email protected]