Employers can ask for vaccine status of staff, according to B.C. lawyer

A B.C. workplace lawyer says employers and business owners are well within their rights to ask for the vaccination status of staff, ahead of the proof-of-vaccination card coming into effect.

From Monday, non-essential businesses in B.C. will be required to check customers' vaccine status, using the app system.

But the program does not apply to staff.

“The government, provincially, is basically putting the onus on employees to enforce the vaccine passport,” said workplace lawyer Paul McLean. “But there’s no obligation that the person serving you is fully vaccinated."

McLean is a partner at law firm Mathews, Dinsdale & Clark LLP, based in downtown Vancouver. He says in the context of a global pandemic, certain rights, such as privacy, will be trumped by public safety requirements.

“That’s a pretty minimal intrusion when you look at the greater good, which is trying to keep everybody in the workplace safe,” he said.

Can an employer ask the vaccination status of staff?

“In this context, I would say yes,” said McLean.

Vaccination status is considered private information, but it’s likely the courts would regard an employee’s right to privacy as less important than public health - a concept echoed by another expert when the proof-of-vaccination program was announced.

But McLean says businesses need to handle sensitive information properly.

“Best practices would be to safeguard that information so it’s not disclosed company wide,” he said, adding it may even be destroyed after a period of time.

What if an employee refuses to be vaccinated?

In certain industries, McLean says, employers would be within their rights to terminate an employee who refuses to be vaccinated. One example he cites is a fitness instructor who comes into close contact with people during workouts in indoor, confined spaces.

McLean said employers should try to educate staff and encourage them to be vaccinated. But if a staff member refuses with no valid exemption, it’s unlikely the courts would view that as unfair dismissal.

“I think in the majority of cases that will be just cause,” McLean said. “I’m not sure there are many judges that would want to say that’s reasonable and you should be allowed to not be vaccinated and keep coming to work.”

In a statement, WorkSafeBC said, “The proof of vaccination program does not apply to workers. Although employers may develop their own policy around vaccinations. As part of WorkSafeBC’s communicable disease prevention efforts, we’re encouraging employers to support employees in receiving vaccinations for COVID-19."