Can an employer require workers to disclose their vaccination status?

A PHO order may require select employers in certain sectors to collect vaccination status from their workers, such as for those who work in health care settings. However for other employers, checking vaccination status of their workers is not currently a public health requirement or a WorkSafeBC requirement. Similar to mandatory vaccination policies, employers should seek legal advice when deciding to implement such policies. The BC Vaccine Card being rolled out by the provincial government is for patrons to access certain venues and events and does not apply to workers at these businesses.

Employers may refer to A human rights approach to proof of vaccination during the COVID-19 pandemic, published by B.C.’s Office of the Human Rights Commissioner, for advice on how employers can approach vaccination status policies.

Can an employer require a vaccination as a condition of employment?

Under PHO orders, employers in the health care sector are required to ensure workers are fully vaccinated as a condition of employment. For example, employers, contractors, workers, and service providers in long-term care facilities; private hospitals; standalone extended care hospitals; assisted living residences; hospitals and community health care locations such as public health clinics, laboratories, and private home care are subject to PHO orders that address the collection and reporting of vaccine status information and requirements for vaccination in order to perform work within facilities. For more information on specific requirements for employers and others, please refer to orders, notices, or guidance issued by the provincial health officer.

For employers and workers where no such order exists, vaccination policies and how they are appropriately implemented in the workplace is new legal territory. These types of policies raise some potential employment law issues. Every workplace is different, so individual employers should seek legal advice when considering whether to develop a mandatory vaccination policy. Employers need to address not only workplace health and safety and workers’ interests but also consider labour and employment, human rights, and privacy issues.

Are there examples of employers who have put worker vaccination policies in place?

The Government of Canada has announced vaccine requirements for all federal public servants as well as for federally regulated workers in the air, rail, and marine sectors. The Government of Canada also expects that Crown corporations and other federally regulated employers will require mandatory vaccination of workers.

The BC provincial legislature has announced mandatory vaccination requirements for staff at the B.C. legislature building, as well as visitors, and the BC Public Service Agency will require its workers to be fully vaccinated by November 22, 2021 under its BC Public Service Proof of Vaccination Policy.

WorkSafeBC has also introduced a staff-vaccination policy.

What resources exist to help employer understand what to consider for their vaccination policies?

As well as seeking legal advice, employers can also refer to the following resources to learn more about what to consider about developing a mandatory vaccination policy:

• Industry and business associations: Employers may wish to look to their industry and business associations for resources and links specific to their workplace. For example, the Business Council of British Columbia has published advice on this topic in its report, Mandatory vaccines in the workplace.
• Employers’ Advisers Office: Employers can also reach out to the Employers’ Advisers Office at 1.800.925.2233 for additional assistance and guidance with respect to COVID-19 questions, including workplace vaccination issues.
• A human rights approach to proof of vaccination during the COVID-19 pandemic: Published by B.C.’s Office of the Human Rights Commissioner, this document provides advice and guidance on some of the principles employers should take into account when determining whether vaccination status policies can be justified under B.C.’s Human Rights Code in their specific circumstances. It guides employers to think about the following factors when considering a mandatory vaccine policy at their workplace:
  • Equitable access: An employer needs to identify and address barriers to vaccine access that may be present in their particular workforce and balance a requirement for a vaccine with facilitating and supporting vaccination.
  • Evidence-based: Vaccination policies should be evidence-based, taking into account the risks of transmission in the specific setting. Vaccine-related policies need to align with the most recent public health guidance and the most current scientific understanding of the specific risks present in the particular setting.
  • Time-limited: As with public health officer orders, vaccine policies should be time-limited and reviewed to ensure they continue to meet the intended purpose and are reflecting current understanding and risks associated with COVID-19.
  • Proportionality: Any vaccine status policy should be proportional to the health and safety risks in the particular setting and workplace. This requires a thoughtful assessment of the particular workplace risks and the broader uptake in vaccinations in the general population.
  • Necessary: Any vaccine policy, including a policy regarding sharing vaccine status, should be necessary with the employer giving due consideration to whether other less intrusive measures might achieve the same result.
  • Privacy concerns: The employer must also be aware of the duty to accommodate and address and understand privacy law and concerns.

Can a worker refuse unsafe work because a co-worker has not been vaccinated for COVID-19?

Workers in B.C. have the legal right to refuse unsafe work if there is reasonable cause to believe it would create an undue hazard to their health and safety. For COVID-19, an “undue hazard” would be one where a worker’s job role places them at increased risk of exposure and adequate controls are not in place to protect them from that exposure.

If a worker feels unsafe because they are working in proximity to a worker who has not been vaccinated for COVID-19 or other communicable disease, they should speak to their supervisor or employer and immediately report their concerns.

The employer must investigate the matter. As part of their investigation, the employer should review the level of risk and ensure the fundamentals of communicable disease prevention are applied, and appropriate measures are implemented to reduce the risk of workplace transmission of COVID-19 and any other communicable disease.

If the worker and the supervisor or employer cannot resolve the issue, they must contact WorkSafeBC and a prevention officer will investigate and take steps to find a workable solution.

WorkSafeBC prevention officers investigating work refusals will deal with each refusal on a case-by-case basis. They will undertake a full assessment of the situation and will issue any orders necessary to address the hazard.

In general, an unvaccinated worker would not be considered an undue hazard, particularly if there were control measures in place. However, there may be situations where an undue hazard could exist if a communicable disease prevention program is not in place, or deemed insufficient. Each refusal needs to be assessed on a case-by-case basis.

Currently in B.C., most employers do not have mandatory vaccination policies, although some are choosing to implement them. WorkSafeBC has been advising employers that they may choose to implement their own staff-vaccination policies based on their own due diligence.

Evidence shows that vaccination is the best control measure available to prevent the spread of COVID-19. That’s why WorkSafeBC introduced a mandatory vaccination requirement for its own staff.

For more information on the right to refuse unsafe work and what workers can do to stay safe at work, see: COVID-19 and communicable disease information for workers.

Claims-related FAQs

Does WorkSafeBC pay for COVID-19 testing if a health care provider will not admit an unvaccinated worker without a negative COVID-19 test?

Generally, WorkSafeBC would not pay for an injured worker to be tested for COVID-19 in order to access health care services. If a provider refuses to provide treatment to an unvaccinated injured worker, we will explore alternate service/treatment providers or options. Most health care providers are able to provide care via telephone and video technology.

If a health care provider declines to assess or treat an unvaccinated worker, what actions are taken to assist the worker?

WorkSafeBC expects that these types of situations will rarely happen as most professional governing bodies do not support their members declining to provide services because a patient is unvaccinated. If these situations occur, WorkSafeBC will investigate the circumstance with the provider to ensure they have an accurate understanding of the situation. If a provider declines to assess or treat an unvaccinated injured worker, alternate service/treatment providers or options for the worker will be explored.

Are wage-loss benefits reduced if suitable modified or alternate return-to-work options are available, but an unvaccinated worker is required to be vaccinated as a condition of employment?

In general, if a modified or alternate return-to-work offer is considered suitable but the worker is unable to participate solely based on their vaccination status, WorkSafeBC may reduce a worker’s wage-loss benefits. WorkSafeBC will investigate the circumstance with the worker and employer prior to making the determination. If WorkSafeBC determines that a reduction is appropriate, wage-loss benefits would be calculated by deducting what the worker is estimated to be capable of earning from the pre-injury earnings.

Is a worker entitled to wage-loss benefits if they are no longer temporarily disabled but are unable to return to work due to their unvaccinated status?

No. A worker's entitlement to wage-loss benefits concludes when the worker is no longer temporarily disabled by the compensable condition but remains off for other reasons. Workers should be aware some employers may require they be vaccinated prior to returning to work. WorkSafeBC encourages workers to speak to their employer about their vaccination policies and how they will be implemented.

Can a worker file a claim for an adverse reaction to a work-related COVID-19 vaccination?

If a worker has an adverse reaction to a work-related COVID-19 vaccination, the information below will help you determine if a claim should be submitted.

If a worker thinks they have a work-related case of COVID-19, please see our COVID-19 claims information for workers and information for employers to learn more about submitting a claim.

If you disagree with a decision made by WorkSafeBC, you can request a review from WorkSafeBC’s Review Division. At any time, the Workers’ Advisers Office (604.335.5931 or toll free at 1.800.663.4261) is also available to provide assistance to workers who disagree with COVID-19 related claim decisions made by WorkSafeBC, and COVID-19 related prohibited action matters. Learn more about submitting and managing reviews during COVID-19.

When could an adverse reaction to the COVID-19 vaccine be work-related?

If a worker submits a claim for an adverse reaction, injury, or death from the COVID-19 vaccine, it would have to be shown that the adverse reaction, injury, or death arose out of and in the course of the worker’s employment. WorkSafeBC considers:

• Whether the COVID-19 vaccination was a mandatory requirement of employment.
• If the worker sustained an injury (or death) as a result of the COVID-19 vaccination.

Was the COVID-19 vaccination a requirement of employment?

To determine whether the worker’s injury or death resulting from the COVID-19 vaccination arose out of and in the course of the worker’s employment, WorkSafeBC establishes whether the inoculation or injection was a requirement of the worker’s employment.

The COVID-19 vaccination would be considered to be required by employment if it meets one of the following criteria as outlined by policy in the Rehabilitation Services & Claims Manual (page 84):

1. The inoculation or injection is required by the employer, either as a condition of employment or as a condition of continued employment. For example:
   • The worker is advised by the employer that they cannot work unless they have the vaccination.
2. Although the employer has advised that the inoculation or injection is not a condition of employment, without the vaccination, the worker would not be permitted at work if there was an outbreak on the employer’s premises. Examples would include:
   • If there is an outbreak of COVID-19, the employer will not permit their non-vaccinated employees to work until the outbreak has passed while vaccinated employees are allowed to continue to work.
   • Without the vaccination, the worker is not able to access available extra shifts or duties. For example, a nurse is not able take shifts on a specific ward (i.e., emergency room or COVID-19 unit) unless vaccinated.
3. The worker is convinced that it was necessary to receive the inoculation or injection, in spite of objective evidence from the employer that the process was not compulsory. If a worker contends that it was mandatory, WorkSafeBC will investigate the individual merits and circumstances as to why the worker felt the vaccination was a requirement of their employment. The following is an example where it may be reasonable to conclude that the worker was convinced that it was necessary:
   • The worker is convinced they were strongly encouraged by their employer and/or the public health officer to receive the vaccination to protect the high-risk patients, residents, or staff at their place of employment.

Once it is established that the COVID-19 vaccination was a requirement of the worker’s employment, or the worker was convinced that it was necessary for employment, any injury or death that resulted from the vaccination would be considered to arise out of and in the course of the worker’s employment. All claims are adjudicated on the merits and justice of the case.

If the inoculation or injection was received voluntarily by the worker, either as part of a program put on by the employer or in any other circumstances, and the evidence supports that the COVID-19 vaccination was not a requirement or condition of the worker’s employment as noted above, any injury or death resulting from an adverse reaction to the inoculation or injection is not likely to be considered to have arisen in the course of the worker’s employment.