TORONTO — As pandemic restrictions continue to loosen across Canada amid increased vaccination rates, some customers may be hesitant to return to certain businesses if they are not made aware of the employees’ COVID-19 vaccination status.
However, experts say employers are not permitted to share their workers’ private medical information.
Nainesh Kotak, founder of Kotak Personal Injury Law in the Greater Toronto Area, told CTV’s Your Morning that customers have a right to ask businesses if their employees are vaccinated. However, he said it is up to the employer and employee whether they disclose that information.
“I think you’re going to see consumers asking these questions and what would have been really a privacy issue in the past, now I think will certainly become the norm,” Kotak said in an interview on Tuesday.
“It could work the other way, in terms of certain businesses asking their consumers are they vaccinated as well,” he added.
Kotak said this will likely cause consumers to “shop around” for certain products or services if the business does not disclose vaccination information, specifically in industries such as personal care, retail, and hospitality.
While customers can inquire, Christopher Achkar, principal and employment lawyer at Toronto-based firm Achkar Law, says an employee’s health information is typically kept private, unless they provide consent to publicly share it.
Achkar told CTVNews.ca on Tuesday that privacy rights to health information are protected by various degrees of legislation in each province.
“Employers cannot force employees to disclose if they are vaccinated to customers if they are asked and certainly cannot do it on their behalf,” Achkar explained in an email on Tuesday.
If an employee does agree to share that information, Achkar said employees still have certain protections under those various legislations that may prevent specific details from being disclosed to customers, including medications or vaccinations.
To prevent pressure from customers who want to know the vaccination status of a business’ employees, Achkar said employers should put a notice on their website or a sign on their front door saying that no personal health information about employees will be divulged to customers.
“Now that customers know that businesses cannot disclose information about their employees, even though they ‘can’ ask the question, now they know they shouldn’t,” he said.
Employment litigator Stephen Wolpert says employers should avoid asking employees about their vaccination status to prevent singling out those who have not been vaccinated for “legitimate reasons,” including those who are immunocompromised or have certain health conditions.
Wolpert told CTVNews.ca in an email that customers should base their decision to visit certain business on what visible health measures they have in place, rather than the vaccination status of its employees.
“The better bet for businesses is to find other ways — like social distancing rules, ready access to sanitizer, and store layout redesign, among other things — to make customers feel safer,” Wolpert said.
CONCERNS AROUND LIABILITY
Sunira Chaudhri, employment lawyer and partner at Levitt LLP in Toronto, says the law around whether a business can be held liable if a customer were to become sick after being in contact with unvaccinated employees “isn’t clear yet.”
Chaudhri said in a telephone interview on Tuesday that employers will probably “shy away” from allowing non-vaccinated employees to be client-facing for this reason.
“If an employer knowingly allows non-vaccinated employees into the retail space, perhaps unmasked when masking protocols die down, if there happens to be a case that creates some kind of serious health condition or serious symptoms, then it’s certainly possible that liability could be there,” she explained.
Chaudhri said she expects employees to “willingly” share their vaccination status with employers in order to return to work, noting that these safety measures to protect other employees will also subsequently lend itself to the customers, regardless of whether they are explicitly made aware of it.
“To ensure that employers are providing the safest environment possible to other employees, they’re going to have to ask for that information and likely disclose it, at least to other employees to make sure the workplace is as safe as possible,” Chaudhri said.
While an employee’s medical information has traditionally been kept private, Chaudhri said the COVID-19 pandemic has changed public expectations around privacy when it comes to vaccination information.
“Safety trumps privacy, always,” she said.
In order for businesses to fully reopen without that risk of liability, Chaudhri said employers are likely going to require a “stringent guideline” on COVID-19 vaccinations.
“Because of that, employers will deem that it’s a protocol or a policy to disclose whether or not you’ve been vaccinated in order for you to return to the workplace,” she explained.
While an employer cannot legally force an employee to get vaccinated, Chaudhri said there will likely be repercussions for those who decline the shot to ensure the safety of other co-workers and customers, such as permanently working from home or being moved to a different role.
“It’s not the law that you have to get vaccinated… but that doesn’t mean that there might not be consequences for those who are not vaccinated. You could lose your job,” Chaudhri said.
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