Volume 8 • 2021 • Issue 4

procedure. Moreover, employers generally don’t have a right to ask for detailed medical information about their employees. You can tell your employees that you hope they will get a vaccine because you care about their health and well-being. But what do you do if they say no? Can you discipline them? Probably not. Can you fire them for just cause? Probably not. If you put them on unpaid leave, they could claim constructive dismissal. Or they could claim that you were breaching their human rights. There’s debate in my office about the privacy implications of even asking an employee to tell you whether or not they’ve been vaccinated. Normally, we don’t ask people if they’ve been vaccinated for the chickenpox or if they are getting other medical treatments. In the context of COVID, howmuch will privacy rights come into conflict with health and safety measures? The law is not settled on that. Personally, I think employers should ask if employees are vaccinated for COVID. It’s a risk, but I think one worth taking. I expect rules around this will evolve because we’ll need to know what to do if people refuse to disclose their vaccination status. We also need to keep an eye on public health guidance. I would think that over the summer and into the fall, public health authorities will be giving guidance about what you can and cannot do depending on whether or not you’re vaccinated. This could influence how people think about both vaccinations themselves and disclosure of vaccination information. For dentistry, the infection prevention and control protocols that are in use are rigorous and effective. Will they stay largely the same in the operatory? When all staff members in an office are vaccinated, maybe one reward is being able to have a conversation over lunch with a colleague. Q Can an employer require that employees are frequently tested? RC: I don’t think you can force someone to undergo COVID testing. Where I live in Ontario, some small- to medium-sized businesses have offered rapid testing to their employees to help everyone feel safer. But if somebody refuses, you can’t force them to be tested. In Ontario, you can’t get tested through the public system without having symptoms. So getting these kinds of tests on a regular basis wouldn’t even be feasible. Q What does arbitral jurisprudence say about mandatory vaccinations? RC: There are some vaccination cases from arbitration in a unionized environment, such as hospitals. Some hospitals had mandatory flu vaccination and unions went to arbitration to grieve such policies. In some cases, the mandatory flu vaccination was upheld, usually because of very particular circumstances in the hospital and high risk to patients. In other cases, the policies were not upheld. But hospitals made new rules instead, such as either get a flu vaccine or wear a mask during flu season. Then the arbitrators suggested that this mask rule violated privacy because those wearing masks would be revealed as being unvaccinated. Q Can an employer reward or incentivize vaccination? RC: I’m a proponent of using carrots instead of sticks. One risk, though, is that if an employee can’t be vaccinated for medical reasons, that employee may claim that they are being discriminated against. In several provinces, employees are being given paid time off to get the vaccine and to recuperate at home if they have an adverse reaction. In places where that isn’t a legal requirement, it might be a good idea for employers to offer the time off, because it works as a targeted incentive. I'm not saying it would be impossible for an employee who can’t be vaccinated to make a discrimination claim against a policy like that, but far less likely. Q What if a patient calls the office and asks if staff have been vaccinated? RC: You can’t disclose whether an individual employee has been vaccinated. That is a breach of their privacy. It’s personal medical information about one of your employees. I would remind a patient about the effectiveness of the safety protocols already in place at your dental practice to prevent disease transmission. It might also be useful to remind patients that the latest evidence shows that vaccinations protect the person who received the vaccine from serious illness. We don’t have definite science about transmission yet, to my knowledge. This article is presented for information purposes only. Legislation may differ between territories and provinces. Please refer to your local authorities for specific legislative requirements. There’s debate in my office about the privacy implications of even asking an employee to tell you whether or not they’ve been vaccinated. In the context of COVID, how much will privacy rights come into conflict with health and safety measures? Watch Raquel Chisholm in conversation on CDA Oasis, where she addresses these and other vaccine-related workplace issues in a series of short Q&A videos: bit.ly/2SHTUcU 20 | 2021 | Issue 4 CDA at W ork