Privacy is important these days, and nothing is more private than our medical information. But when it comes to being safe in a pandemic, it’s also important to know how safe stores, restaurants and businesses are, especially as they start to fully re-open and masks are no longer mandated. Whether a person has been fully vaccinated makes a huge difference in how likely they are to catch the coronavirus and transmit it to others, as well as how sick they might become if they contract the virus.
Do we have a right to ask a person’s vaccination status before they provide a service, especially if unmasked? Can an employer require their employees to disclose their immunization status and make this information public? Can you be required to show proof of COVID vaccination before travelling to another country?
CTV News interviewed several personal injury, employment and privacy specialists to get their expert opinion on these questions. Their comments were interesting, I thought, so I wanted to share some of what they said. Quite a can of worms…
What if you can't get vaccinated?
Of course, there are some people who cannot be vaccinated for medical reasons, such as allergy to a component of the vaccine, or who do not respond well to vaccines, due to low immune function or medications that block the immune system. These people need to be protected from discrimination.
Employers cannot force employees to disclose their vaccination status to clients and they certainly cannot disclose this information on the employees’ behalf, the lawyers emphasized. One suggested businesses could post a sign on their door saying that no personal health information would be divulged about their employees. But that sounds like something that might have the potential to reduce business…
Safety first
However, employers have a right and requirement to provide a safe work environment for other employees and their clients. This means that employers may need to know who is unvaccinated... whether they cannot, or choose not, to take the vaccine. In the name of safety, these employees may find themselves required to work from home or in a modified position that reduces contact with others, if there is a potential safety risk to others. If that’s not possible, due to the nature of the work, they may be considered unsuitable for the position and not be hired.
Can you ask if employees are vaccinated?
Yes, as a customer you have a right to ask an employee or service provider if they are vaccinated, but they are not legally required to answer. Employers are not allowed to reveal health information, like immunization status, without the employee’s permission. However, customers may start to “shop around” for safer places to do business, if this information is not revealed.
An alternative, is for businesses to continue to provide safety measures, like physical distancing, altered store layout, sanitization and perhaps continued masking to make customers feel safer when shopping there or using their services.
With COVID-19, vaccination status has become less of a privacy issue. Many people (like me!) are excited and happy to be fully vaccinated, and want to tell the world, even though it's really private medical information. It’s quickly becoming a minor privacy issue for most people—in fact, it’s becoming the norm.
Of course, it can work the other way too—businesses may want to ask customers whether they are vaccinated. In fact, some already are, like airlines who will only allow those who are fully vaccinated to book a flight. Countries and even some Canadian provinces are only allowing those who are 2 weeks past their second shot to enter without restrictions, citing safety of their citizens. Many are also requiring proof of a negative COVID test as well… all medical information that, in other situations, would be private.
Can vaccination be required before travelling to another country?
Yes, certain vaccines, like yellow fever, are already required for travel to certain countries. This sets a precedent for requiring any vaccine that is deemed necessary to improve safety while travelling. Although we're still waiting for the dust to settle on travel vaccine requirements, no-one will be surprised if full COVID immunization is required by many countries to protect their citizens as well as travellers. International discussions about the form that "COVID-19 vaccination passports" will take emphasizes that these will be a likely requirement for travel when international borders open.
Safety trumps privacy… always
Employment lawyer, Sunira Chaudhri, discussed whether a business could be held liable if a customer were to become sick after contact with unimmunized employees. While she said it isn’t completely clear yet, she also said it’s certainly possible an employer who allows unvaccinated employees to contact clients unmasked (after mask restrictions are lifted) could be sued if a client or other employee became very ill. To make the workplace as safe as possible, she indicated, employers are going to have to ask about vaccination status and employees are going to have to disclose it. “Safety trumps privacy, always” she said.
So, just like airlines and other countries are requiring proof you are 2 weeks past your second COVID-19 vaccination, employers may develop policies and protocols that require proof of vaccination before an employee returns to the workplace or works in close contact with clients. It’s not the law that you have to get vaccinated, but there may be consequences for those who are not, like an assignment to a position with little or no contact with other employees or the public, or losing a job altogether.
What about insurance?
They didn’t interview an insurance specialist, but their comments would have been informative as well. If the insurance industry becomes involved and senses increased liability (and future costs), choosing not to be immunized against COVID-19 could become very expensive for employers and employees. I guess it all depends on how low case counts and risk of contracting coronavirus infection become. Epidemiology experts predict that COVID is here to stay and will continue to circulate in the human population, hopefully as a less severe infection as our immunity builds. Perhaps even most of the unvaccinated population will eventually develop immunity from having recovered from an actual infection.
The bottom line is that we may not have a true choice (other than to just stay home) as to whether to disclose our vaccination status. Safety first… But hopefully, eventually enough of us worldwide will be vaccinated to stop or at least drastically slow the circulation of this deadly virus and these requirements will become a temporary measure. It’s already happened with polio and some other diseases that are included in childhood immunizations. Until then, be ready to produce proof of vaccination if you want to travel and possibly if you want to apply for that new job.
Next week...
And if the reason you (or someone you know) hesitates to get your COVID shots is that you’re afraid of needles (common in 25% of the population!), next week’s blog might help you!
References:
Customers can ask about an employee's vaccination status, but employers can't share it: experts--CTV News
6 Frequently Asked Questions: Vaccinations + the Workplace--Miller Titerle + Company
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