We are often asked if employers can require their employees to be vaccinated.
Soon employers and job applicants will be asking another question – can employers lawfully ask a job applicant if they are vaccinated? Answering this new question requires navigating various laws.
Is requiring vaccination a suitable safety measure?
Under public health orders some employers are mandated to ensure vaccination of some or all of their employees.
With the responsibilities those employers have under the Orders, it would usually be necessary and reasonable to ask the question of a candidate, and we would recommend prefacing the question with a clear explanation of why it needs to be asked.
Under work, health and safety law, employers must so far as is reasonably practicable, ensure the health and safety of their workers and other persons in the workplace.
The extent of interaction with members of the public by employees and the level of community transmission of COVID-19 at the time are some factors that employers might consider when assessing if vaccination is a reasonable safety control measure in their workplace.
If the employer decides that it is, again it would be reasonable to ask the question. We suggest that a suitable explanation be provided before as above.
Is asking a job applicant about COVID-19 vaccination status a lawful question?
Asking questions to job applications about protected “attributes” can be unlawful under discrimination law.
At the time of writing vaccination status is probably not a protected attribute under discrimination law.
Nonetheless an employer may “indirectly discriminate” against a job applicant by asking a question about their vaccination status if the person is not vaccinated because of (say) a physical disability, which is a protected attribute under discrimination law.
There is an exception however if the job applicant’s vaccination status means they do not meet the inherent requirements of the role.
If an employer reasonably decides that it is an inherent requirement of the role that an appointee be vaccinated, this situation should be made clear to candidates, and the employer’s right to rely on the exception explained, so all candidates know the situation and why the question is being asked.
Privacy Law also Applies
If the situation is such that an employer asks the question about vaccination status, and receives an answer, the information thus provided is almost certainly “personal information” under privacy legislation that may apply to the employer, which can give rise to various obligations upon the prospective employer including protecting and safely storing the information.
What Should Employers and Employees Do?
Some key considerations in a job application process therefore, before asking or answering a question about vaccination status, include:
- Is the position affected by a relevant public health order requiring vaccination?
- If not, what are the inherent requirements of the role, and do they include vaccination?
- Does the question only ask for information going to whether the applicant meets the inherent requirements of the role?
- Are processes in place to comply with privacy law requirements for storing and handling the information given by the job applicant, whether successful or otherwise?
Employers and job applicants alike should give careful consideration to these issues before asking or answering questions about vaccination status.
While the above provides a general guide to the circumstances in which an employer may ask about a candidate’s vaccination status and use that to inform decisions about employment, this is not exhaustive. Employers need to carefully consider their business and candidates’ circumstances and keep an eye on the rapidly evolving law in this area.