Asking About Vaccination Status Does Not Violate Health Privacy
June 7, 2022
According to a recent decision from the Ontario Labor Relations Board, employers can ask employees to provide details about their vaccination status without violating the Occupational Health & Safety Act.
This finding arose from a case before the Board where a former employee of the Toronto Public Library [TPL] claimed her suspension and subsequent termination from the library was inappropriate because employers are barred from accessing workers’ health records without the worker’s written consent, or authority from statute or a court order.
In the second half of 2021, many employers across the province began instituting vaccination policies in response to recommendations by local public health officials that they do so. These policies received significant pushback from people who did not agree with their implementation. The reasons for the opposition varied but for some, reflected a belief that their employers should not be allowed to obtain such information without the employee’s consent.
TPL was one such employer.
TPL instituted a mandatory vaccine policy on September 2, 2021 which required all employees and volunteers to be fully vaccinated by October 30 and receive their first vaccination by September 30, 2021. All employees were also required to disclose their vaccination status by September 20, 2021 and the disclosed information was maintained in accordance with privacy legislation. According to the policy, any employee who refused to comply would be subject to discipline up to and including termination (a common clause in employment policies).
Several of TPL’s employees refused to comply with the vaccine mandate. One of these employees, Heather Wong, complained to the Ministry of Labour in October 2021, about the introduction of the policy and asked that a Ministry inspector make a finding that the policy violated the Act.
Section 2 (2.1) under Schedule 1 of the Reopening Ontario Act [Regulation 634/20] required organizations to establish, implement and ensure compliance with vaccine policies if there were any advice recommendations or instructions issued by 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, recommending that such a policy be put in place. Such a recommendation existed in Toronto when TPL implemented its vaccination policy.
A Ministry inspector held a field visit October 21, 2021, to investigate the complaint but found that there was no violation of the Act. The basis of this finding was that the vaccine policy and disclosure of the employee’s health status was required by statute and thus authorized under Section 63 (2) of the Act.
Based on this requirement, the Ministry inspector concluded that the library’s policy did not contravene the ban under section 63(2) of the Act on obtaining access to an employee’s health record.
The Board’s Finding
The Board agreed with the Ministry inspector’s findings and further ruled that, even absent such a law, the request for vaccination status data would have been permissible as the nature of the request specifically asked for the employee’s consensual disclosure of their vaccine status.
The Board noted that an employee could theoretically argue that they had been coerced into disclosing the vaccine information and it was not true consent if they had provided it. But in this particular case, the employee never provided any vaccination status information. Thus, that argument did not apply.
Takeaways For Employers
Although this ruling comes from the labour context, it provides some interesting analysis applicable to nonunionized employees as well. In particular, this is one of the first cases to deal with the applicability of Section 2(2.1) under Schedule 1 of the Reopening Ontario Act and confirms that employers needed to create vaccination policies during that period.
This is one of the first cases to make a finding on this issue. It is noteworthy that the Board did not opine on the appropriateness of the policy itself or the consequences of failure to comply. It specifically stated that such findings were outside the scope of the particular case before it (which was limited to the question of vaccination status disclosure requests).
While we have seen various decisions from arbitrators finding that vaccination policies were valid and enforceable, we still have yet to see any decisions from any court.
That decision will be left for another court on another day.