It is likely that employer policies with respect to COVID-19 will be enforceable only where reasonable in the full context of all the facts and circumstances. A policy for mandatory vaccination may be unreasonable where practical alternatives exist. Most importantly, what is reasonable under one set of circumstances may be unreasonable in another. But whether an employee is vaccinated or not, should they be compelled to disclose their status to an employer? Where disclosed, how jealously should the employer safeguard this information?
Background
Employers may create COVID-19 policies for employees with respect to testing, restrictions, vaccination, and disclosing vaccination status. Certain aspects of these policies may be enforceable—others may not be. These various aspects could fall under four categories: testing, restrictions, vaccination, and disclosure of vaccination policies.
Courts have not (yet) provided any guidance to employers with respect to what kinds of these categories of policies will be enforceable. However, labour arbitration decisions may yield insight as to what kinds of policies will be enforced by the courts.
For a more fulsome explanation, see our related blog with respect to the Reasonableness and Enforceability of Mandatory COVID-19 Vaccination Policies in the Workplace.
Disclosing Vaccination Status is a "Minimal Intrusion" into the Privacy of Employees
In the labour arbitration decision of Electrical Safety Authority (ESA) v Power Workers' Union, it was decided that requiring an employee to disclose medical information, such as vaccination status, "must be reasonably necessary and involve a proportionate response to a real and demonstrated risk or business need."1 But, in Bunge Hamilton Canada v UFCW Local 175, it was held that disclosure of vaccination status would be a minimal intrusion into the employee's right to privacy, being considerably outweighed by "enormous public health and safety interests."2
In one decision, challenging a policy to disclose vaccination status was determined to be effectively a challenge to the vaccination policy itself. In Teamsters Local Union 847 v Maple Leaf Sports and Entertainment (MLSE), an employee was placed on unpaid leave for failing to disclose his vaccination status.3 The union did not dispute the mandatory vaccination policy but contended that an employee's vaccination status is private and should not be subject to disclosure. Ultimately, the arbitrator ruled that: "I do not see how the Employer can enforce a vaccine mandate without requiring disclosure of an employee's vaccine status."4
Therefore, when a policy for vaccination is reasonable and enforceable, it is likely that a policy to disclose vaccination status will also be enforceable.
Employers Should be Vigilant in Safeguarding Employee's Personal Medical Information, such as Vaccination Status
When vaccination status is disclosed, the privacy concerns of employees must be addressed. Employers are strongly recommended to keep the information confidential, safe, and secure.
The privacy rights of employees are not well articulated under any statutory framework. The Occupational Health and Safety Act contemplates protecting employees in general—but it is silent with respect to protecting employees' privacy interests.5 Similarly, the Ontario Personal Health Information Protection Act, 2004 does not specifically articulate protections in an employment context.6 Federal legislation may offer some protection through the Personal Information Protection and Electronic Documents Act and the Privacy Act, but again, neither offer concrete protections for employees in the workplace.7
Informational privacy rights are recognized and protected under the common law. In Jones v Tsige, the Ontario Court of Appeal described that "intrusion upon seclusion" is a nominated tort and is available as a cause of action.8 Under the holding in Jones, the intrusion must be either intentional or reckless.9 Indeed, the labour arbitration decision of ESA, supra, referred to the Jones decision to justify its holding that employees' privacy rights are significant.10
There is, as yet, no Ontario jurisprudence that found an employer liable for damages in tort for breaching the privacy of its employees. However, employers would be cautioned to nonetheless tread carefully. Employers must constantly engage in a balancing exercise between the privacy of their employees and the needs of the business, and the official recognition of the tort of inclusion upon seclusion makes this exercise all the more challenging.
A recent example reveals the potential risk for employers when managing COVID-19 policies. The Saskatchewan Health Authority (SHA) had a program for mandatory COVID-19 testing to accommodate unvaccinated employees. On February 11, 2022, the employer sent a mass email to participants of the program. However, employee names were "inadvertently added to the CC (carbon copy) field, instead of the BCC (blind carbon copy) field."11 Consequentially, participants of the program were identified to each other. SHA took the position that this error did not actually reveal the vaccination status of any employee, as it only identified participants of the program. At least one employee remarked that the implication was there nonetheless. Consequences for SHA—if any—are not yet known.
Conclusion
Labour arbitration decisions have held that in order to have an effective COVID-19 vaccination policy, employees need to disclose their vaccination status to their employers. An employee disclosing their vaccination status to their employer may well be only a "minimal intrusion," but the same can not be said if an employer recklessly mishandles sensitive information. In light of the fact that breaching informational privacy rights may give rise to liability in tort under the common law, the potential risk to employers is clear.
Employers would be well advised to shore up their privacy policies and practices in light of any mandatory COVID-19 vaccination policies and disclosure requirements. Employers are duty-bound to protect their employees, and this protection must necessarily take many forms.
Footnotes
1. Electrical Safety Authority v Power Workers' Union (7 November 2021) arbitrator: John Stout at paras 37-38 [ESA].
2. Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada, Local 175 (13 December 2021) arbitrator: Robert J Herman at para 25.
3. Teamsters Local Union 847 v Maple Leaf Sports and Entertainment (12 January 2022) arbitrator: Norm Jesin [MLSE].
4. Ibid at para 20.
7. SC 2000, c 5; RSC, 1985, c P-21.
8. Jones v Tsige, 2012 ONCA 32 (CanLII) at para 66.
10. ESA, supra note 1, at para 63.
11. Yasmine Ghania, "Sask. Health Authority accidentally outs employees who were part of mandatory COVID testing program," (16 February 2022) online: CBC News (cbc.ca)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
