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Do employees have a right to privacy about their vaccination status?


Vaccine mandates in workplaces raise a lot of questions for employees. This post will focus on a few questions related to an employee’s right to privacy concerning their vaccination status:

  1. Does the employer have a right to require employees to disclose private information like vaccination status?
  2. If so, how can the employer deal with that information?
  3. On the other hand, do colleagues have the right to know the vaccination status of people who work near them?

Does an employer have a right to require employees to disclose private information like vaccination status?

Medical information is given one of the highest levels of protection in the workplace. As a starting point, an employer can’t ask for an employee’s private health information without a good reason. But that does not mean that an employer can never ask for health information.

This is, of course, something that we see in other contexts. An employer can legitimately ask for some health information when an employee asks for an accommodation related to disability or mental health, or in circumstances where an employer has legitimate grounds to question whether an employee is fit to return to work. In these kinds of cases, there are strict limits on what information an employer can request, but the employer can make reasonable requests for personal information.

The same will likely be true with a request for COVID vaccination status in the current context of the global pandemic. An employer’s duty to protect the health and safety of its employees will give a strong basis for asking for vaccination status. We see this in pre-COVID arbitration decisions around flu vaccination policies in hospitals, which upheld the right of hospitals to ask for vaccination status.

At the time this blog post was written, the first arbitration decisions assessing COVID vaccination policies have also upheld the right of employers to ask for an employee’s vaccination status.

This right won’t necessarily last forever – if COVID should become less of a public health threat and public health restrictions have been removed, then COVID vaccination status may become no different than other private health information. In that situation, an employer would need to show a good reason for requesting that information.

How can an employer deal with information about COVID vaccination status?

That said, while an employer can likely request employees’ COVID vaccination status, it also has a clear duty to protect the privacy of that information. For some employers, this is an obligation set out in legislation, such as the Privacy Act. For others, it will flow from the obligation to exercise their management rights in a reasonable way.

In either case, arbitration decisions dealing with the matter are consistent with the employer’s obligation to protect the privacy of health information. Indeed, in the cases that looked at flu vaccine mandates in hospitals pre-COVID, one policy was found to be unreasonable in requiring unvaccinated employees to have a sticker on their ID badge disclosing their vaccination status.

What does this obligation amount to? Generally, it means that the information has to be dealt with on a ‘need to know’ basis – the information should only be used for the purpose it was collected (verifying vaccination status) and only disseminated to those who need the information for implementation.

Can employers be required to disclose the vaccination status of work colleagues?

On the other side of the coin, some employees might ask whether, to protect their own health, they can ask an employer to disclose the vaccination status of their colleagues. In other words, can you ask your employer to tell you whether you’re working beside someone who is unvaccinated?

As is probably already clear from the previous sections of this post, the answer to this question is very likely no. While employers can likely ask for vaccination status in order to protect the health and safety of the workplace, they have an obligation to protect the privacy of that sensitive information. Disclosing vaccination status to other colleagues in the workplace doesn’t meet that obligation.

This doesn’t stop employees from asking their employer to provide a safe workplace – another topic that raises its own slate of issues. But it’s fairly clear that this would not include disclosing the private vaccination status of other employees.