Privacy Please: Vaccinations and Employer’s Privacy Obligations

Employment and Labour, General Litigation

Employee Privacy Rights with Vaccinations in the Workplace

This article is the second in a series of three on vaccinations and employment law concerns.

In our last article, we provided an overview of various issues that employers need to consider when implementing a vaccination policy. In this article, we focus on one issue in particular: employee privacy. If an employer is interested in implementing a vaccination policy, they must be aware that they will be collecting personal information from their employees, and what the legal ramifications are.

What is personal information, exactly? The legal definition is surprisingly broad. Personal information includes any information that can identify an individual, such as their name, home address, phone number, or ID number. It is also includes any information about an identifiable individual, such as their physical description, educational qualifications, medical information, and banking information. All of this information is protected by BC’s Personal Information Protection Act, [SC 2003] c. 63 (“PIPA”). PIPA applies to all organizations and to all personal information held by the organization, unless the organization is specifically exempted.

So what can an employer do if they want to collect personal information in order to implement a vaccine policy? The short answer is be accountable. Employers are legally responsible for all personal information under their control. PIPA uses the “reasonable person test” for deciding whether an organization has carried out its responsibilities under the legislation – that is, what a reasonable person would deem appropriate in the circumstances. An employer must have procedures in place to safeguard and limit the dissemination of personal information that meet the reasonable person test. This must include policies and practices with respect to the collection, use, and disclosure of personal information. Additionally, there must be a designated individual in the organization responsible for ensuring compliance with PIPA, as well as procedures to handle both external or internal inquiries and complaints about the organizations collection and use of personal information.

There are a variety of potential liability consequences for employers who fail to adequately protect their employees’ privacy. An employee may complain to the Office of the Information and Privacy Commissions (the “OIPC”). The OIPC has the discretion to investigate an organization if it is satisfied that there are reasonable grounds to believe the organization is not complying with PIPA. Furthermore, failure to properly collect and protect personal information may constitute both a statutory and common law tort. BC’s Privacy Act, [RSBC 1996], c 373 makes it a tort, without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another. Likewise, the common law tort of “intrusion upon seclusion” holds that “one who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person” (Jones v. Tsige 2012 ONCA 32 (CanLii)). Without safeguards and proper policies, employers may find themselves at the receiving end of a complaint or even litigation.

In addressing these concerns, employers should keep consent in mind. Employees should be notified that their employer intends to or is collecting personal information. The purpose for this should be explained and consent given. Policies and procedures that have either being considered or have been put in place since the start of the pandemic should be reviewed and, if necessary, updated to better protect employees’ privacy.

So how do you know if you are doing everything you can to protect your employees and meet PIPA requirements? Reach out to a lawyer – any member of our Employment and Labour group can help you navigate these issues.

 

Chris Martin
Partner | Langley
778 289 9542
cmartin@lklaw.ca
Timothy Delaney
Partner | Vancouver
604 484 3059
tdelaney@lklaw.ca
Tamara Dewar
Partner | Langley
778 289 955
tdewar@lklaw.ca
Cassandra Drake
Partner | Vancouver
604 484 3097
cdrake@lklaw.ca
Chad M. Gerson
Partner | Langley
778 289 9509
cgerson@lklaw.ca
Brad Martyniuk
Partner | Vancouver
604 484 3068
bmartyniuk@lklaw.ca
Gaurav Parmar
Associate | Langley
778 289 9544
gparmar@lklaw.ca
Givon Santos
Associate | Langley
778 289 9559
gsantos@lklaw.ca
Matthew Stainsby
Associate | Vancouver
604 484 3085
mstainsby@lklaw.ca
Braeden Wiens
Associate | Vancouver | Langley
778 289 9501
bwiens@lklaw.ca


Read the other articles in this series:

Vaccination Status: It’s Complicated


New Concerns and New Responsibilities

This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.