Do employers have a right to reveal which workers have been vaccinated?
Recently, I had to arrange for service in my home, and I was reassured when the dispatcher assured me that “the employee we send will be fully vaccinated”. Then, being an employment lawyer, I started to think about the legal implications.
- Didn’t she just share personal information about an employee with me?
- Had the employees consented to such disclosure?
- If not, wasn’t that a breach of their privacy rights?
As readers know, there are a plethora of issues relating to vaccination of employees. We have discussed, and will continue to discuss, whether employers can require that employees be vaccinated.
Along with that issue is the question of whether employers can ask whether workers have been vaccinated and, to take that a step further, require proof of vaccination.
On a related note, but with different legal implications, we have also discussed whether vaccination can be a hiring criteria.
We know that in many factual scenarios, we have to address the balancing of various rights and interests. For example, sometimes we must balance safety concerns with human rights. Privacy rights also are often thrown into the mix.
So let’s consider this “new” situation where organizations want to use the fact that their employees as a selling point. Not only is this good marketing and good customer service, it is also a health and safety issue. Whether they are telling customers or other employees that a specific employee is vaccinated, it is done to provide the recipient of that information with reassurance that their safety is being protected.
But does it breach the privacy rights of the employee?
There is no doubt that whether or not someone has been vaccinated is personal information. If a business tells a customer "Don't worry, the service person that we send has been vaccinated," they are disclosing that personal information.
The same is true if they tell one employee that the person they will be working with has been vaccinated. Typically, you cannot do so without the consent of the person that the information relates to. So, while it may be tempting to say that, businesses that do so may expose themselves to liability.
This is most certainly something that organizations should bear in mind as we move forward in these novel circumstances.
