BRIEFING NOTE Industry for Vaccination - Workplace Vaccine Considerations - May 17, 2021 ...
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BRIEFING NOTE
Industry for Vaccination
Workplace Vaccine Considerations
Part 1: Background & Context
As vaccine supply increases and becomes more accessible, provinces across the country are preparing to vaccinate the
general public. Ensuring adequate vaccine uptake will support a near-return-to-normal, which would facilitate the
reopening of the economy and improved public health outcomes. Unfortunately, a significant proportion of the population
remains hesitant about COVID-19 vaccines. Recent polling suggests that ~28% of Canadians (and a higher proportion of
Albertans) would not get a vaccine as soon as it was available to them1.
Public health experts say we may need ~85% of the population immunized to reach herd immunity. We are unlikely to
reach this high a coverage rate without concerted societal action to increase vaccine uptake. Companies have a critical
role to play in increasing vaccine uptake. Repeated surveys have shown that employers are a highly trusted source
of information, and employees are frequently going to their employer with questions about COVID-19 and vaccinations.
In this context, it is important for employers to consider various workplace policies and strategies to enable vaccination.
Part 2: Introduction to employer COVID-19 immunization policies
Most, if not all employers have policies around COVID-19 and COVID-19 vaccination. In formulating a COVID-19
vaccination policy, it is important to recognize that:
● Employers have an important role to play in increasing vaccine uptake;
● Employees will come to their employer with vaccine-related questions – and employees have far more
touchpoints with their employer than they would be with healthcare system; and
● Vaccination uptake can be encouraged and enabled, but not mandated.
Given the above, it is important for employers to have immunization policies that are scientifically sound (and
informed by the science) and that also reflect the unique needs of their employees. While all employers want high
vaccine uptake for their employees, approaches will be different – encouraging uptake among agricultural workers who
are primarily newcomers to Canada who do not have English as their first language will be different than for a financial
services firm based in downtown Toronto.
Benefits of high vaccine uptake
There are multiple benefits to any organization for having as many of its employees immunized as possible. Some of
these benefits include:
1. Improved health and well-being of employees from being protected from COVID-19
2. Reduced workplace transmission (to both other employees and other stakeholder groups like customers, vendors,
etc.)
3. Better employee health (physical and mental) as vaccinations allow for ‘return-to-normal’ activities such as
in-person social interactions
4. Near-term operational benefits through better business continuity via fewer outbreaks, sick days, etc.
5. Longer-term operational benefits through company, sector, and societal re-opening
1
https://angusreid.org/vaccine-astrazeneca-johnson/
BRIEFING NOTE
Industry for Vaccination
Workplace Vaccine Considerations
Legal considerations of COVID-19 immunization policies
While there is a limited body of case law around COVID-19 immunization policies (see attached May 2021 opinion from
Fasken Martineau Dumoulin), the current legal landscape around COVID-19 vaccines suggests that:
(1) Employers can collect anonymized data on their employees’ intention to get vaccinated, so long as this
information is used to increase uptake (and not to take punitive action).
(2) Employers can facilitate, enable, and encourage vaccine uptake, so long as it is not coercive.
(3) Employers generally cannot mandate that employees be immunized.
(4) Employers are allowed to restrict activities of unimmunized employees – but what these restrictions could actually
be vary on a case-by-case basis.
Part 3: How to create an immunization policy and increase vaccine uptake
There are multiple drivers of vaccine hesitancy – a useful framework for thinking about the issue is the World Health
Organization’s 3 C’s (confidence, concern, convenience).
● Confidence: Questions & concerns around the safety or efficacy of the vaccine
● Concern: The extent to which people are worried about the underlying disease (COVID-19) – the more
concerned they are about health and other deleterious impacts of COVID-19, the likelier they are to be vaccinated
● Convenience: Broadly can be thought of as ‘access’ – e.g., having on-site clinics tends to increase uptake
because it becomes easier to get vaccine than having to make an appointment and find transport to a public
health vaccine clinic
Extensive research has demonstrated that level of trust in government, institutions, etc. is a huge driver of uptake
for COVID-19 vaccine specifically. Measures that build trust will increase uptake. Fortunately, across multiple surveys,
employers are generally highly trusted, which positions them well to encourage vaccine uptake. Employers can increase
uptake by creating an ‘enabling environment for uptake’ by addressing the following areas:
● Education and information for employees: Information on vaccine logistics and science is changing extremely
quickly, so ensuring that employees have the most current information is critical
● Incentives and behavioral interventions: Financial (e.g., gift card for those who receive vaccine, food at on-site
immunization clinic and non-financial (e.g., vaccine challenges, pledges, etc.) can be used to increase uptake
● Building trust in the employee population: This will be employer and employee specific, but examples include
having different types of ‘vaccine ambassadors’ representing different types of employee population, having
vaccine / public health experts deliver education sessions, etc.
● Enabling policies: Ensuring that policies such as paid time off to get vaccinated, to recover from vaccine side
effects, and to see a medical professional to learn more about vaccines will remove barriers to uptake. Depending
on the employee population, other policies can be helpful
1. Specific considerations in creating an immunization policy
● Stakeholders: Who will be involved in the creation – e.g., executive leadership, risk management team,
legal team, COVID-19 response team, employees, union representative, etc.
● Geographic variation: Different jurisdictions have differences in the below categories that may lead to
differential policies per geography. These considerations should be balanced against the benefits of
having employer-wide policies
i. COVID-19 epidemiology
ii. COVID-19 vaccine rollout parameters
iii. Overall social, cultural, and legal milieu
● Understanding the employee population: Understanding the employee population (e.g., income,
education, type of work, baseline attitudes towards vaccination) is critical as a tailored approach towards
vaccine education & uptake is likelier to lead to higher employee coverage
● Tracking vaccine uptake / proof of immunization: How, if at all, will uptake of vaccine in employees be
measured?
● Policies for those who are immunized vs those who are not: Questions for consideration centre
around if immunized employees be allowed to do ‘more’ (e.g., travel) and if unimmunized employees face
BRIEFING NOTE
Industry for Vaccination
Workplace Vaccine Considerations
‘restrictions’ (e.g., slower return to office compared to immunized peers)? In making these assessments,
some factors to consider include:
i. Specific operational needs (e.g., how important is in-person travel?)
ii. Prevailing public health advice (e.g., US CDC has loosened restrictions for fully immunized
people while Canada has not yet done this)
iii. COVID-19 risk of certain activities (e.g., jobs that require significant in-person contact like an
assembly line worker are higher risk than those that can primarily be done from home
iv. Management, employee, and union attitudes towards this approach
v. Legal implications
vi. What peer employers are doing with respect to these issues
2. Developing vaccine education programs
● A strong foundation can be laid by understanding employee attitudes through internal interviews, focus
groups, surveys, etc. to understand willingness to take vaccine, barriers, and how to overcome them
● Potential ‘channels’ of vaccine education include
i. Employee town halls
ii. FAQs and other easily understandable information sheets on vaccines
iii. Hosting vaccine materials on organization intranet, health and safety pages, etc.
iv. Directing to trusted external sources like PHAC, 19 To Zero (www.19tozero.ca), local public
health jurisdictions, etc.)
● It is important that presenters of this information are trusted sources, which will vary by employer but
generally include healthcare providers, trusted management, union representatives, etc.
3. Incentives and behavioral interventions to encourage uptake
● Employers can increase uptake by providing incentives (e.g., gift cards, food, ‘points’ via internal rewards
system) and through behavioural interventions (e.g., vaccine pledges, friendly competition in the same
vein as Corporate challenge, etc.,)
● In determining which incentives and behavioral interventions to adopt, tailoring to employee desires will
be more effective and can be elucidated through existing knowledge of employees and primary data
collection (e.g., interviews, focus groups, surveys)
4. Making vaccines more accessible for employees
● On-site immunization is an excellent way to improve uptake and can contribute to significantly higher
rates of vaccine uptake. Arranging for this requires government / public health authorization and the ability
to do on-site vaccines – which can be done via an employer’s internal occupational health staff or in
partnership with public / private sector vendors that have the ability to run vaccination clinics.
● If on-site immunization are not feasible, employers can improve accessibility by identifying and
removing barriers (e.g., paid leave to get vaccinated, support with transportation, sick days for vaccine
side effects, assistance navigating vaccine booking systems, etc.)
Employers have a critical role to play in increasing vaccine uptake and are well-equipped to do so. If you have any
questions or require any assistance with increasing vaccine uptake for your employees, please feel free to
connect with 19 To Zero (www.19tozero.ca) by email at info@19tozero.ca.
Common Misconceptions
& Questions
Information accurate as of April 15, 2021
19 TO ZERO UNITED AGAINST COVID-19 | JANUARY 2021
I’m not at risk of
COVID-19.
COVID-19 is highly contagious,
especially the newer variants. Our
community continues to be at risk of
infection. The continued need for strict
public health rules can have a negative
impact on our lives.
Vaccines are the only way to end the
pandemic.
Person with oxygen mask in hospital for
COVID-19 greeting family on a video call
19 TO ZERO UNITED AGAINST COVID-19 | JANUARY 2021
COMMON CONCERNS AND QUESTIONS
I already had COVID-19.
Do I still need a
vaccine?
Healthcare worker holding swab
If you have already been infected with
COVID-19, the vaccine will likely help you stay
YES. protected much longer (early evidence shows
higher antibody levels/more protection with
the vaccine).
There is evidence that people can get COVID
infection more than once.
19 TO ZERO UNITED AGAINST COVID-19 | JANUARY 2021
COMMON MISCONCEPTIONS AND
QUESTIONS
Do the vaccines work
against the new
COVID-19 variants?
YES. Some but not all.
Red social distance sticker on ground of a grocery store
All vaccines are thought to work well against the
B.1.1.7 UK variant but some have decreased
effectiveness against other variants.
We are waiting for better information in order to
know for sure.
19 TO ZERO UNITED AGAINST COVID-19 | JANUARY 2021
COMMON CONCERNS AND QUESTIONS
Should I get a newer
vaccine or wait for
People lined up outdoors in front of white tents the mRNA vaccines
All available vaccines are very effective at preventing to be available?
hospitalisation and deaths.
Current levels of COVID community transmission are still
high. Therefore, it is best to get protected as soon as you
can. The best shot you can get is the one in your arm.
19 TO ZERO UNITED AGAINST COVID-19 | JANUARY 2021
Pfizer:
• 70% effective against
COMMON CONCERNS AND QUESTIONS symptomatic disease (after
28-34 days)
• 85% effective against
What is the hospitalization (after 28-34 days)
AstraZeneca:
effectiveness after • 73% effective against
the first vaccine symptomatic disease (after
28-34 days)
dose? • 94% effective against
hospitalization (after 28-34 days)
19 TO ZERO UNITED AGAINST COVID-19 | JANUARY 2021
COMMON CONCERNS AND QUESTIONS
Will I still have
to mask and
distance? Red sign indicating to physically distance
Yes. All public health guidance must be
followed until we learn more.
The more people who get the It takes a couple weeks for protection to
vaccine, the closer we are to herd develop after getting the vaccine
immunity (community protection) Studies are still looking to see if vaccination
and loosening restrictions prevents asymptomatic transmission of
COVID.
19 TO ZERO UNITED AGAINST COVID-19 | JANUARY 2021Phase 1: Jan-Feb 2021
● At-risk health care workers and seniors
Phase 2: Mar-Jun 2021
COMMON CONCERNS AND QUESTIONS ● Specific at-risk groups, ordered by age
and health risks
● AstraZeneca vaccine available early to
When can I receive Albertans age 40 to 64
● Individuals working with patients in
the vaccine? person
Phase 3: Spring/Early Summer
● Anticipated start of roll-out to the general
public in Alberta
*including healthy adults & possibly children
later in 2021*
19 TO ZERO UNITED AGAINST COVID-19 | JANUARY 2021COMMON CONCERNS AND QUESTIONS
Is the vaccine Woman receiving the vaccine
effective in seniors?
Yes, the vaccines significantly reduce the
risk of severe illness, hospitalization, and
death in senior populations.
19 TO ZERO UNITED AGAINST COVID-19 | JANUARY 2021©2021 Pharmacy5in5.com
When it’s Best to Get the First
COVID-19 Vaccine Available to You
It’s best to get vaccinated It’s best to wait to
as soon as possible: get vaccinated:
When there is a lot of virus If you have a serious infection
in your community (ex. fever), wait until you feel better
When there are “variants of If you currently have COVID-19,
concern” in your community wait 2 weeks
If you or someone in your home If you have just received a vaccine
must go out to work every day (ex. shingles vaccine), wait 2 weeks
If you are the main caregiver If you have an allergy to a specific
for someone else ingredient in one of the vaccines,
talk to your doctor or pharmacist to
If you have a chronic disease such find out which vaccine you can get
as diabetes, heart disease, asthma
If you have had heparin-induced
If you have a weakened thrombocytopenia ( HIT ) before, talk
immune system to your doctor or pharmacist to find
out which vaccine you can get
If you are pregnant
If you have a history of blood clots
(1 in 100 COVID-19 cases has a
blood clot)
In a pandemic, waiting for a different vaccine
means choosing to be unprotected for longer.
How long does it take for a COVID-19 vaccine to work?
*of a 2-dose
After dose 1* vaccine After dose 2
It can take up to 4 weeks It can take another 1-2 weeks
to get good protection to get full protection
All 4 approved vaccines in Canada protect against severe
illness, hospitalization, and death. Waiting days or weeks
delays your protection.
Content by Kelly Grindrod, BScPharm, PharmD; Noah Ivers, MD, PhD; Rosemary Killeen, BScPhm. Design by Adrian Poon, BA. Page 1/3©2021 Pharmacy5in5.com
How COVID-19 Vaccines Compare
Oxford Johnson & Pfizer
AstraZeneca Johnson
Moderna
BioNTech
All four vaccines protect against hospitalization and death from COVID-19.
AstraZeneca Johnson & Johnson Pfizer Moderna
Eligible age 18+* 18+* 12+ 18+
Number of doses 2 1 2 2
Those fully vaccinated who are
still at risk of hospitalization 0 in 100 1 0 in 100 2 0 in 100 3 0 in 100 4
and death from COVID-19
Those fully vaccinated
who are still at risk of mild 38 in 100 1 34 in 100 2 5 in 100 3 5 in 100 4
to moderate COVID-19
Offers some protection
4 - 6 weeks after first dose
Yes Yes Yes Yes
Rare but serious 1 to 2 in 100,000 risk 1 in 500,000 risk of None as of None as of
side effects of vaccine induced vaccine induced May 5, 2021 May 5, 2021
(more info page 3) blood clot blood clot
*Health Canada has authorized use of AstraZeneca for those 18+, while some provinces have set the eligible age to 40+.
†As of April 14, 2021, Health Canada states that the benefits of the vaccine in protecting against COVID-19 outweigh its potential risks.
1
Voysey et al. Lancet 2021; 397 (10269): 99-111.
2
https://www.fda.gov/advisory-committees/advisory-committee-calendar/vaccines-and-related-biological-products-advisory-committee-december-10-2020-meeting-announcement
3
Polack et al. N Engl J Med. 2020; 383: 2603-2615
4
Baden et al. N Engl J Med. 2021; 384: 403-416
†https://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2021/75389a-eng.php Page 2/3Getting an AstraZeneca or ©2021 Pharmacy5in5.com
Johnson & Johnson Vaccine
when COVID-19 Risk is High
Based on Ontario data over the previous 14 days as of April 27, 2021*
Potential Benefits Age Potential Harms†
20-29
30-39
40-49
50-59
60-69
70-79
80+
= 1 COVID-19 hospitalization prevented (per 100,000) = 1 vaccine-related blood clot (per 100,000)
= 1 COVID-19 related death prevented (per 100,000) †these are estimates and subject to change as we learn more
about vaccine-related blood clots
*https://www.publichealthontario.ca/en/data-and-analysis/infectious-disease/covid-19-data-surveillance/covid-19-data-tool?tab=summary Page 3/3Vaccine
communication
19 TO ZERO UNITED AGAINST COVID-19 | 2021COVID-19 has
affected Vaccines will help us end the
many. pandemic and return to normal.
Why get Your
vaccinated? communities Keep healthy to protect our
are relying on most vulnerable.
you.
You want to Keep yourself, your friends and
stay your family safe.
healthy.
19 TO ZERO UNITED AGAINST COVID-19 | 2021How to discuss the vaccine
1. Connect before you
communicate
○ Build common ground
2. Personalize the information
○ Talk about COVID-19 in the
context of their life
3. Share your own experience
19 TO ZERO UNITED AGAINST COVID-19 | 2021A few pointers
on effective
communication:
• Spend time to find the common
ground
• Remember the gist of what you’re
trying to communicate
• People make decisions
on gist!
• Use personal testimony or
anecdotes
• Keep messaging simple: use
simple numbers
19 TO ZERO UNITED AGAINST COVID-19 | 2021A few pointers
on tailoring the message:
Keep it around their identity:
• Acknowledge their circumstances
For vaccine hesitant people identifying with an
ethnic group:
• Respectfully acknowledge historical harms of
vaccines and medical experimentation
• Bridge trust by pointing to local champions
and support groups
Highlight community benefits
• Call out adverse effects of COVID on the
specific communities they are apart of
• Speak about strengthening their community
with vaccine protection
19 TO ZERO UNITED AGAINST COVID-19 | 2021Proactively start the
Pr conversation with a
Presumptive statement.
Offer to share your knowledge about
COVID-19 O the facts and your experience with
having had the vaccine.
Vaccine
Communication T Tailor the recommendations to their
specific health concerns.
Framework
Address specific concerns
C (should not be the bulk of the
conversation).
Talk through a specific plan for where
T and when to get the vaccine.
19 TO ZERO UNITED AGAINST COVID-19 | 2021Proactively start the I am here to support you as you make the decision to take
Pr conversation with a the vaccine. I had the chance to receive the vaccine
myself and am happy to help you get protected too.
Presumptive statement.
Offer to share your knowledge about I have been thinking a lot about this vaccine for myself and
O the facts and your experience with my family members. I have also taken steps toward educating
myself on the benefits of the vaccine. Can I share some of
having had the vaccine. what I know with you?
Because of your conditions (ie., diabetes and high
T Tailor the recommendations to their
specific health concerns.
blood pressure), you are at high risk of being
hospitalized with COVID-19. In order to maintain the
good quality of life you have right now, it is important
to consider getting vaccinated.
Address specific concerns I had the chance to take the vaccine myself and
C (should not be the bulk of the am happy to help you make the decision too, so
conversation). you can be protected.
Talk through a specific plan for where You can do the following to get the vaccine (list
T and when to get the vaccine.
steps). I can help you make your appointment
through a local pharmacy or online.
19 TO ZERO UNITED AGAINST COVID-19 | 2021Top COVID-19 Vaccine FAQS
Vaccination is the only way to end this pandemic and return to our normal lives.
Protect yourself, your loved ones, and your community by getting vaccinated.
Why should I get vaccinated?
COVID-19 infection can result in death in ill and
healthy people of any age. COVID-19 is highly
contagious, especially the newer variants.
Even if a person does not die of COVID-19, they
may have long term complications including
memory loss, fatigue, unexplained breathing
difficulties, and damage to the lungs and heart.
Clinics have already been set up to support the
many COVID-19 patients who, although they are
no longer infected, cannot go back to work or live
a normal life.
How does the vaccine work?
The vaccine teaches our body’s immune
system how to fight the virus and protect us
from getting sick if we are exposed to COVID-
19. The vaccine cannot give you COVID-19.
What is herd immunity and why
does it matter?
If enough people have immunity, the virus is
less likely to spread. We need to vaccinate
70-80% of the population to achieve herd
immunity and go back to our daily lives,
reopen businesses, hug and see loved ones
again.
I already had COVID-19. Should I
still get a vaccine?
Even if you had COVID-19 in the past, it is
uncertain how long immunity will last. It is
possible to get COVID-19 again. You should
still get the vaccine to protect yourself and
others.
For more information about opportunities to support 19toZero, please contact: info@19tozero.ca
For up-to-date information about the vaccine, visit: canada.ca/covidvaccine
19 TO ZERO UNITED AGAINST COVID-19 | www.19toZERO.caHow long will it take to become
immune after I receive the vaccine?
It takes about 2 weeks after the second dose
for the body to build immunity after
vaccination. Someone could be infected with
the virus just before or just after vaccination
and get sick, because the vaccine didn’t have
enough time to provide protection.
Was the vaccine rushed?
No steps were skipped, and all safety
procedures were followed. The vaccines
were developed quickly because of
technological advances and because non-
medical parts of approval (bureaucratic
processes and rubber-stamping) were fast-
tracked.
Are there side effects?
There can be side effects from the COVID-19
vaccine, but they tend to be mild and go
away in a few days. The most common side
effects are muscle soreness, headache, and
fever/chills.
You will be monitored for any potential
allergic reaction after vaccination.
Is the vaccine safe?
Immunization is safe. It is much safer to
get immunized than to get COVID-19 and
potentially suffer long-term side effects. Millions of
Canadians have already received a vaccine and the
vaccines have been shown to be safe. The vaccines
cannot alter your DNA.
If you have a history of severe allergic reactions, a
weakened immune system, or are pregnant, check
with your physician before getting vaccinated.
Will I still have to mask and distance
after getting vaccinated?
Yes. It is still important to practice public health
measures until most people are vaccinated.
For more information about opportunities to support 19toZero, please contact: info@19tozero.ca
For up-to-date information about the vaccine, visit: canada.ca/covidvaccine
19 TO ZERO UNITED AGAINST COVID-19 | www.19toZERO.caMEMORANDUM
To: Jia Hu
From: Erin Porter
Date: May 9, 2021
Client/File: 19 to Zero Inc.
326456.00001
Re: Frequently Asked Questions – COVID-19 Vaccination Incentive Policy
You have asked us to provide you with answers to various frequently asked questions from
employers about COVID-19 vaccination incentive policies. We have provided a response to these
questions based on the current state of the law. Given the unprecedented nature of COVID-19, the
law, particularly as it pertains to the employment situation, is rapidly evolving.
The answers below offer a general application of the law. Employers should always reach out to
legal counsel about the specific factors that apply to them as this may change our response and the
advice given.
We have tried to provide a response to your questions that would be applicable across Canada;
however, given that employment, health care and privacy are provincially regulated, answers in
each province may vary. We have specifically reviewed the answers to these questions with
lawyers in our regional offices in British Columbia, Alberta, Ontario and Quebec. If you are
seeking information about another province, please let us know and we can put you in touch with
counsel from that jurisdiction.
1. Is it permissible for an employer in Canada to establish a vaccination incentive
program against COVID-19?
In general, the case law1 provides that it is acceptable for an employer to promote the vaccination
of employees, including by providing incentives and carrying out awareness campaigns for its
employees. The typical reasoning is that vaccination is generally viewed as an acceptable means
of reducing the risk of contagion in the workplace; thus, the employer is considered justified in
supporting vaccination given its obligation to ensure the health and safety of workers and others
in the workplace.
1
Trillium Ridge Retirement Home v. S.E.I.U., Local 183, 1998 CarswellOnt 7647; Carewest v. A.U.P.E., 2001
CarswellAlta 1851; Chinook Health Region v. U.N.A., Local 120, 2002 Carswel.lAlta 1847.
326456.00001/112548385.4As stated below, it is important to note that there are some considerations when developing a
vaccination incentive program. Furthermore, some provinces have now introduced legislation that
requires that employees be provided with a paid leave of absence so that they may be vaccinated.
Provincial rules and regulations must be considered when developing a vaccination incentive
program.
2. If an employer introduces a vaccination incentive program, could it be liable for
potentially adverse side effect related to vaccination?
It is important to address potential liability from adverse side effects related to vaccination. Each
province has a workers' compensation system that provides access to income replacement and
other benefits for eligible workers who are injured or become ill in the course of employment. It
is possible that a worker who accepts to be vaccinated against COVID-19 as part of the employer’s
vaccination incentive program will be considered to have been vaccinated in the course of
employment. Accordingly, if the worker develops an injury as a result of the administration of the
vaccine, he or she may be entitled to receive benefits under applicable workers’ compensation law.
Although the risk of such a claim succeeding may be low given the indirect connection between
the vaccination and the course of employment, employers should nevertheless be aware of the
possibility that an employee may bring a claim. With only a few limited exceptions, these workers
cannot sue their employer for workplace injuries or illness. This may preclude a lawsuit against
the employer by covered workers for negative side effects caused by the vaccine.
This being said, in cases where a lawsuit against the employer was not barred by workers'
compensation legislation, it is unlikely that the employer would be held liable for adverse side
effects resulting from a vaccination incentive program, as the vaccination would be administered
by a third party healthcare professional and the employer would be relying on the assessment of
Health Canada regarding the general safety of approved vaccines.
3. Is a vaccine incentive program discriminatory?
Employers should consider allowing employees who are not vaccinated for legitimate reasons
protected by the applicable human rights legislation (e.g. disability or creed/religion), and who
provide reasonable evidence of this reason, to also receive these incentives on the same terms.
Otherwise, the incentive program may be found to be discriminatory. In deciding whether to grant
an exception, the employer should limit its request for information to only what is reasonably
required to establish that there is a protected ground under human rights legislation. In a medical
exemption, for example, this may be written confirmation from a qualified health practitioner that
there is a disability, as defined in human rights legislation, that prevents the employee from being
vaccinated. The employer is generally not entitled to more specific diagnosis information.
Additional Guidance from Quebec
In Quebec, the right to refuse to be vaccinated is protected under the provisions of the Quebec
Charter of Human Rights and Freedom, which affirms an individual’s fundamental right to bodily
integrity and inviolability. This right is complemented by the provisions of the Civil Code of
Quebec which stipulated that no one may be made to undergo care of any nature, except upon their
consent. In our view, this does not prevent an employer from encouraging its employees to get
2vaccinated. Case law in Quebec recognizes that an employer may promote vaccination and conduct
an awareness campaign in the workplace. In the circumstances of the COVID-19 pandemic,
immunization is a rather clear way to reduce the risk of contagion in the workplace. An employer
would therefore likely be justified in incentivizing vaccination, in view of protecting the health
and safety of workers.
With respect to the information that may be required by the employer of an employee who claims
that he or she cannot receive the vaccination due to religious beliefs, case law provides that it may
be enough for a claimant to demonstrate that the religious precept is real and at the heart of his or
her religion, and that his or her beliefs are sincerely held. This is confirmed by the Amselem2
decision of the Supreme Court of Canada, in which the Court stated that “freedom of religion is
triggered when a claimant demonstrates that he or she sincerely believes in a practice or belief
that has a nexus with religion” and that “as such, a claimant need not show some sort of objective
religious obligation, requirement or precept to invoke freedom of religion. It is the religious or
spiritual essence of an action, not any mandatory or perceived‑as‑mandatory nature of its
observance, that attracts protection.” On this basis, the applicant’s sincerity may be able to be
assessed through a simple observation without anything further being required to evidence the
religious belief.
4. Can the employer require proof of vaccination in order to determine which employees
will receive the incentive? How would the employer collect this information?
Employers can require proof of vaccination in order to determine eligibility for a vaccination
incentive, subject to the comments below. These comments are provided on a preliminary basis
based on existing case law and the public health and regulatory guidance currently available;
however, we recommend revisiting this question when new public health and regulatory guidance
becomes available or when COVID-19 vaccination becomes more prevalent in the general
population.
Ontario:
In Ontario, provincially-regulated employers are not currently subject to any privacy legislation in
relation to employee privacy, aside from narrow protections in the Occupational Health and Safety
Act. Under that legislation, an employer requires a worker's written consent to access their health
record. While “health record” is not defined, proof of vaccination could be considered a health
record. To ensure compliance with this requirement, employers should consider obtaining an
employee’s signed acknowledgment that they consent to allowing the employer to review their
certificate of vaccination.
Despite this being the only applicable statutory privacy protection in Ontario, employers should
generally limit the collection, use, and disclosure of personal information of employees to what is
reasonably necessary for employment purposes and take appropriate steps to safeguard personal
information. For proof of vaccination, the employer should not keep or make copies of the
employee’s certificate of vaccine, and should limit the information it records to essential
information only, which may include the following:
2
Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47.
3• the identity of the employee;
• the name of the vaccine received; and
• the date that each dose of the vaccine was received.
This information should be kept secure and separate from the employee’s regular personnel file
and should only be accessible on a confidential need-to-know basis. In terms of the method of
collection, if the most practical approach to obtaining the information is for employees to send a
scan or screenshot of their vaccine certificate by email, only designated employees should be
accessing the emails, and the emails should be deleted once the essential information has been
recorded. Collection may also be done in person with the same principles applying.
Quebec, British Columbia, and Alberta:
The recommendations mentioned above with respect to Ontario apply equally in Quebec, British
Columbia, and Alberta, although it should be noted that there are additional legal requirements
that apply in Quebec, British Columbia, and Alberta due to privacy laws. Under Quebec’s privacy
laws, employers are required to obtain express consent from employees in order to collect personal
information. Under British Columbia’s and Alberta’s privacy laws, employers are permitted to
collect, use, and disclose employee personal information without consent when the collection, use,
and disclosure is reasonable for the purposes of establishing, managing, or terminating the
employment relationship and notice of the collection, use, and disclosure and the purposes of same
is provided to the employee.
However, given the sensitive nature of vaccination information, it is recommended in all three
provinces that written consent be obtained to ensure compliance. This means that employers have
the obligation to inform employees of the following elements in order to obtain valid consent:
• The purposes of the collection of personal information;
• The use which will be made of the collected information and the categories of
persons who will have access to it within the enterprise;
• The place where the information will be kept (including whether the information
will be stored by a service provider outside Canada);
• Their rights of access and rectification; and
• The name, title, and contact information for an officer or employee of the
organization who can answer questions about the collection of personal
information.
Employers are also required to take appropriate safeguards to protect this personal information
(particularly regarding the sensitivity of the personal health information collected). This includes
physical measures (e.g., locked filing cabinets and restricted access to offices), organizational
measures (e.g., security clearances and limiting access on a “need-to-know” basis) and
technological measures (e.g., the use of passwords and encryption) in order to ensure the protection
4of any personal information collected. Employers are required to minimize the amount of personal
information they collect, use, disclose and retain to the only extent necessary to accomplish the
identified purpose of the collection(particularly regarding personal health information). For
example, seeing a copy of a vaccination certificate and recording essential information could
suffice for the employer's purposes, rather than keeping a copy.
5. Are there privacy law considerations with a vaccination incentive program?
Vaccination status necessarily involves the personal medical information of employees. Privacy
obligations and best practices should be considered when establishing a voluntary vaccination
incentive policy. There appears to be three types of personal information that may potentially be
collected as a result of this policy: (1) the fact that an employee will be getting vaccinated; (2) an
employee’s status of vaccination; and (3) an employee’s reasons regarding why they cannot or will
not get the vaccine3(collectively, the “Incentive Information”).
Although the British Columbia and Alberta Personal Information Protection Acts (“PIPA”) do
allow for the collection, use, and disclosure of employees’ personal information without consent
where certain conditions are met, we recommend seeking employees’ consent to the collection,
use, and disclosure of the Incentive Information, given the nature of the Incentive Information and
how it will be used. Even where consent is obtained, the collection, use, and disclosure of the
Incentive Information must still be reasonable.
If the only purpose of collecting, using, and disclosing the Incentive Information is to determine
eligibility to receive the incentive, then the collection, use, and disclosure is likely reasonable.
There is unlikely to be a less privacy intrusive way to determine eligibility and collecting the
Incentive Information is necessary to determine eligibility. However, the amount and the
sensitivity of the personal information should be considered as well. For example, will it be
sufficient for an employee to inform an employer that they have a medical condition which
prevents them from getting the vaccine, or will they have to provide a doctor’s note which discloses
that they have a medical condition which prevents them from getting the vaccine? The employer
may violate applicable privacy laws if it collects personal information that is not reasonably
necessary to determine eligibility to receive the incentive.
To mitigate the risk of over-collecting personal information, we recommend visually inspecting
proof of vaccination (which does not necessarily have to be a vaccination certificate – for example,
an employer may decide that visually inspecting a booking confirmation for an appointment to
receive the COVID-19 vaccine would suffice) or proof of a protected ground under human rights
legislation, and retaining the minimum amount of information necessary to administer the
incentive program (for example, a “yes” or “no” response to whether the employee will receive
the incentive). Once the incentive program has ended, then continued retention of the information
may no longer be necessary, in which case the information should be destroyed.
It is unlikely that an employer would be subject to Ontario’s Personal Health Information
Protection Act (“PHIPA”) in respect of this activity as it would not fall within the definition of a
3
Being understood that reasons regarding why an employee cannot or will not get the vaccine is personal
information that must only be collected from employees when it is determined as necessary to justify eligibility
to the incentive for non-discrimination purpose.
5health information custodian under PHIPA. Employers should only receive information directly
from employees, and not from a health information custodian (such as a physician). It should
further ensure it does not receive an employee’s health card number in any information it collects,
such as any proof of vaccination, otherwise this information would fall within the scope of PHIPA.
In Quebec, the right to privacy is governed primarily by the provisions of the Act respecting the
protection of personal information in the private sector, CQLR c P-39.1 (the “Private Sector Act”),
section 5 of the Quebec Charter and article 35 of the Civil Code of Quebec. As a basic principle,
an employer cannot require employees to disclose information that is protected by their right to
privacy, such as medical information, which would include an employee’s vaccination status or
proof of vaccination. In order to justify seeking the disclosure of such information, an employer
would be required to have a “serious and legitimate reason” to collect the information, the
information collected must be necessary for the employer’s stated purpose, and the employee must
give “manifest, free, and enlightened” consent, which must be given for specific purposes (sections
5, 6 and 14, Private Sector Act). In the current context of the COVID-19 pandemic, an employer
could most likely justify requiring the disclosure of an employee’s vaccination status and/or proof
of vaccination, on the basis of its overriding interest in and legal obligation to protect the health
and safety of its employees. This obligation is provided for under Quebec occupational health and
safety legislation as well as under section 217.1 of the Criminal Code. Pursuant to this legislation,
employers must take all reasonable precautions to protect its employees from a COVID-
19 outbreak, which could include reorganizing the workplace, work schedules and other means to
reduce the risk of transmission of the disease. An employer’s knowledge of the vaccination status
of its employees and, by inference, their vulnerability and risk of infection, may be a determinative
factor in implementing these workplace arrangements. To strengthen the employer’s position, it is
advisable that the employer only seek the disclosure of this information from employees working
in a Quebec establishment where COVID-19 is strongly present in the region or zone where that
particular establishment is located.
In all jurisdictions, we would recommend that a policy should be developed to provide notice to
employees regarding how and for what purpose(s) the Incentive Information will be collected,
used, and disclosed, who will have access to the information collected, the employees’ right of
access and rectification in accordance with privacy laws, and the implication for employees if an
employee does not provide their status of immunization or the proof of vaccination (for example:
requirement to require mask in the workplace, social distancing, etc.). The policy should also
describe how the Incentive Information will be securely and safely stored, and for how long. The
policy should be communicated to all employees. Consent language should be included at the end
of the policy for employees to sign that sets out the information described herein. It is important
for all applicable purposes to be included in the policy. For example, if the employer states in the
policy that the Incentive Information will only be used to determine eligibility to receive the
incentive, it cannot then use employees’ proof of vaccination information to modify employees’
schedules, as an example. Notice of any new purposes needs to be provided to the employees in
advance, and depending on what those new purposes are, consent may also be required. In the
absence of a robust policy, a Privacy Commissioner might find that even though the Incentive
Information was collected and used in a reasonable manner, the lack of proper notification or
proper consent, as the case may be, resulted in non-compliance with PIPA or Quebec privacy laws.
6Employers will also need to implement safeguards to keep the collected Incentive Information
secure. There may be a violation of privacy laws where an employee’s vaccination status is directly
or indirectly disclosed to other employees. Therefore, the Incentive Information should only be
shared on a need to know and need to access basis, and care should be taken to maintain the
confidentiality of employees’ vaccination status. In particular, the identity of employees who have
not been vaccinated should remain anonymous to prevent potential harassment or discrimination.
6. Can employers ask employees about their reasons for not obtaining the COVID-19
vaccine through an anonymous survey?
Privacy laws do not apply to anonymous information. As long as the comments cannot be
attributed to an employee, then there should be no privacy concerns in collecting information about
why employees have decided not to be vaccinated. Employers must take steps to ensure that the
information that is collected cannot be attributed to an employee and that it is stored in a secure
and safe manner.
Please see the points raised in the prior question for general privacy considerations when collecting
Incentive Information.
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