Staff vaccine status discussions, disclosures pose challenges for businesses
Published Thursday, June 17, 2021 2:30PM EDT
HALIFAX -- Cynthia Fernandez said her personal sense of responsibility for the safety of her clients led her to publicly disclose that her staff were vaccinated against COVID-19 earlier this spring.
"I think a lot of people are nervous still about coronavirus," the owner of Cambridge, Ont.-based Accurate Auto Appraisal said in an interview. "We want to reassure people and let them know that we take this seriously and we want to ... give them that reassurance and peace of mind."
The return to business after 15 months of public health measures, lockdowns and lost revenues due to the COVID-19 pandemic is presenting a new problem for some entrepreneurs: how to address the issue of vaccines with employees, and how to respond when customers ask if their staff are vaccinated.
Fernandez is one of a number of small businesses across Canada that has disclosed the vaccination status of its employees, but the strategy hasn't been widely adopted.
According to Mark Agnew, vice president of policy at the Canadian Chamber of Commerce, businesses are largely in the dark when it comes to the legal implications of discussing vaccination status.
"In terms of the rules -- or the absence thereof -- from on high, there has been no clear communication to companies about vaccination status either in the workplace or (in) a consumer-facing environment," he said in an interview.
"It's a really messy landscape out there and companies just want some certainty."
Two main legal questions define the current conversation on obtaining vaccine information from staff, Agnew said. One is the duty of care employers are under to provide a safe workplace for their employees. The other concerns privacy issues in protecting the personal information of employees.
According to Mississauga, Ont.-based personal injury lawyer Nainesh Kotak, customers are within their rights to ask if a business's staff are vaccinated.
"I think it is certainly consumer choice and ... particularly relevant in high contact health-care environments such as chiropractic clinics, medical offices, dental offices, massage therapists, even I would suggest insofar as a hair salon," Kotak said.
However, employers aren't imbued with the power to enforce "mandatory vaccinations," said labour lawyer Kyle MacIsaac.
"No one employer anywhere would have the ability to compel an employee to undergo what is essentially a medical treatment," said MacIsaac, a partner at Mathews, Dinsdale and Clark in Halifax. "What they do have the ability to do, obviously, is if an employee refuses to obtain a vaccine to then take certain remedial actions."
Companies must balance those two obligations in crafting policies around vaccination, and there's little consensus on the best way forward.
The Canadian Press reached out to more than 50 customer-facing businesses in four provinces, including salons, daycares and dentist offices, the majority of whom did not respond to a request for comment about their plans for staff.
Agnew said the Chamber of Commerce is increasingly fielding questions from members about whether to ask employees about their vaccinations status. It typically encourages companies to check with local health officials.
Some businesses are taking a cautious approach, he said, asking staff to volunteer their vaccination status, while others "do not want to touch it with a 10-foot pole because they think it's just a legal case waiting to blow up in their face."
Mylisa Henderson, co-owner of Scandinave Spa's Blue Mountains, Ont., location, said in an email that conversations about vaccinations have come up, but staff do not have to disclose personal health information to clients unless they choose to do so.
Even hospitals are wary of the subject. Anthony Dale, president and CEO of the Ontario Hospital Association, said in an emailed statement that since the Ontario government hasn't issued any directives on staff vaccination or the disclosure of that information, hospitals in the province are reviewing "self-reported employee vaccination levels" and are encouraging workers to get jabbed.
Naz Goraya, the owner and sole employee of Edmonton's Mayfield Mattress, said in an interview he's also taken to disclosing his vaccination status on the store's social media accounts to give his business "an edge."
When it comes to privacy, MacIsaac said in an interview that employers looking to gather medical information need to do so with consent from the employee and once collected, the information needs to be protected "with the utmost deference to security" to avoid violating any privacy obligations the employer has for their employees.
Getting expressed and informed consent from employees is key, especially if a business is looking to disclose that information to clients or patrons. That means thoroughly explaining why the information is being collected and documenting the consent of the employee.
Kotak said he expects to see some businesses implement their own vaccination policies.
"Whether they'll be upheld really depends on the type of business it is and if other protections could be in place that would make being vaccinated really not important," he added.
MacIsaac said that while the firm has been fielding more questions about navigating vaccinations in the workplace, he believes the issues will become less important as the pandemic begins to wind down.
"I don't think we're going to get to the point where the status of vaccination becomes such fodder for public consumption," MacIsaac said.
Agnew said he expects the issue to evolve as businesses open up, which is why the Chamber is stressing the need for more guidance on the topic.
"Governments need to tell us what the rules of the road are because we wouldn't want to be in a spot where we're providing fly-by-night legal advice to people," he said.
"This is really something that applies to every single business in the economy in some shape or form, whether (or not) you have employees or customers in the physical workspace."
This report by The Canadian Press was first published June 17, 2021.