employment canada discrimination medical covid-19
Can employer ask about medical information such as vaccines (not specifically COVID19)?
<p>Regarding employers asking for proof of COVID19 vaccination, my friend argued this is illegal because they aren't allowed to ask for other medical information (such as vaccination against Hepatitis C) or existing medical conditions (e.g. ADHD).</p>
<p>Is this correct? Is it illegal for an employer or recruiter to ask an employee, contractor or potential hire if they have been vaccinated for Hepatitis C or have been diagnosed with ADHD?</p>
<p>According to the <a href="https://laws-lois.justice.gc.ca/eng/acts/h-6/fulltext.html" rel="nofollow noreferrer">Canadian Human Rights Act</a></p>
<blockquote>
<p>3 (1) For all purposes of this Act, the prohibited grounds of
discrimination are race, national or ethnic origin, colour, religion,
age, sex, sexual orientation, gender identity or expression, marital
status, family status, genetic characteristics, disability and
conviction for an offence for which a pardon has been granted or in
respect of which a record suspension has been ordered.</p>
</blockquote>
<p>It seems to me that medical information is not a protected class (well it's not a class at all really). So asking about vaccines should be allowed, unless there's another law I'm unaware of. Presumably the employer must comply with PIPA with any information they obtain relating to an employees medical record. ADHD could count as a disability so I guess an employer can't ask about that. Is my understanding correct?</p>
<p>Has legislation been passed to make an exception for COVID vaccination status?</p>

<p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" rel="tag">germany</a></p>
<p>An employer has the <strong>responsiblity</strong> to safeguard the health of all their employees (<strong>Fürsorgepflichten des Arbeitgebers</strong>, <em>Employer Duty of Care</em>).</p>
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<p><a href="https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p2589" rel="nofollow noreferrer">§618(1) Duty to undertake protective measures - German Civil Code (BGB)</a><br />
(1) The person entitled to services must furnish and maintain premises, devices and equipment that he must provide for performance of the services in such a way and must arrange services that must be undertaken on his order or under his supervision in such a way that <strong>the person obliged to perform services is protected against danger to life and limb</strong> to the extent that the nature of the services permits.</p>
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<p>How the <strong>duty of care</strong> is to be implemented in concrete terms is described in more detail in numerous other laws.</p>
<p>The employer must always weigh the employee's personal rights against the employer's operational interests. When asking questions, the employer may only have <strong>the specific position in which the employee is to be employed in mind</strong> and check its requirements. Where there is no <strong>need to know</strong>, the employer cannot ask.</p>
<p>An employee has certain <strong>personal rights</strong> (<a href="https://de.m.wikipedia.org/wiki/Pers%C3%B6nlichkeitsrecht_(Deutschland)" rel="nofollow noreferrer">Persönlichkeitsrecht</a>), but only in so far as it <strong>doesn't violate the rights of others</strong>.</p>
<blockquote>
<p><a href="https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0023" rel="nofollow noreferrer">Article 2 Personal freedoms - Basic Law for the Federal Republic of Germany</a><br />
(1) Every person shall have the right to <strong>free development of his personality</strong> <em>insofar as he does not violate the rights of others</em> or offend against the constitutional order or the moral law.<br />
(2) Every person shall have the <strong>right to life and physical integrity</strong>. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.</p>
</blockquote>
<p>So a <strong>balance</strong> must exist between the rights and responsibilities of both parties.</p>
<p>A line must be drawn where the rights of the first (employee) ends and the responsiblity of the latter (employer) to insure the rights of other employee's (<strong>right of physical integrity</strong>) begins.</p>
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<blockquote>
<p>Is it illegal for an employer or recruiter to ask an employee, contractor or potential hire if they have been vaccinated for Hepatitis C or ...?</p>
</blockquote>
<p>There is no vaccine against <a href="https://en.wikipedia.org/wiki/Hepatitis_C" rel="nofollow noreferrer">Hepatitis C</a>, so I will use <a href="https://en.wikipedia.org/wiki/Hepatitis_B" rel="nofollow noreferrer">Hepatitis B</a> (which is spread by some body fluids) instead.</p>
<p>Is it likely, that a employee who is <strong>not</strong> vaccinated against <em>Hepatitis B</em> poses a general danger to the other employee's?</p>
<ul>
<li>No, therefore it would be illegal for the employer to ask if the employee is vaccinated against it</li>
</ul>
<blockquote>
<p>ADHD could count as a disability so I guess an employer can't ask about that. Is my understanding correct?</p>
</blockquote>
<p>An employee is <strong>not</strong> required to inform the employer of a officialy recognized disability (Schwerbehinderung).</p>
<p>If they do not, they cannot utilise the certain protections that the officialy recognized disability brings with it.</p>
<p>If they do inform the employer, then the employer is <strong>not permitted</strong> to ask about the cause of the disability.</p>
<hr />
<blockquote>
<p>Has legislation been passed to make an exception for COVID vaccination status?</p>
</blockquote>
<p>Yes, <a href="https://www.gesetze-im-internet.de/ifsg/__36.html" rel="nofollow noreferrer">§ 36(3) - Infektionsschutzgesetzes</a> defines for <strong>specific</strong> occupations (defined in § 36(1,2)) for a <strong>restricted</strong> period of time (presently until 2022-03-22) <strong>and</strong> a <em>epidemic situation of national concern</em>, determined by parlament, is in effect.</p>
<blockquote>
<p><a href="https://www.bundesgesundheitsministerium.de/coronavirus/faq-arbeitnehmerselbstaendige/faq-impfstatusabfrage.html" rel="nofollow noreferrer">FAQ Impfstatusabfrage bei Arbeitnehmerinnen und Arbeitnehmern - Bundesgesundheitsministerium</a><br />
<strong>Do you have to prove the vaccination status or just state that you have been vaccinated?</strong><br />
The employer can, if <strong>and to the extent necessary to prevent the spread of the coronavirus disease</strong> 2019 (COVID-19), request information from the employees about the existence of vaccination protection.</p>
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<hr />
<blockquote>
<p><a href="https://de.m.wikipedia.org/wiki/Pers%C3%B6nlichkeitsrecht_(Deutschland)" rel="nofollow noreferrer">Persönlichkeitsrecht (Deutschland) – Wikipedia</a><br />
Das <strong>Persönlichkeitsrecht</strong> ist ein Grundrecht, das dem Schutz der Persönlichkeit einer Person vor Eingriffen in ihren Lebens- und Freiheitsbereich dient. <em>Im deutschen Recht ist das Persönlichkeitsrecht als solches nicht ausdrücklich geregelt</em>. Zunächst wurden lediglich einzelne <strong>besondere Persönlichkeitsrechte</strong> wie das Recht auf Achtung der Ehre, das Namensrecht oder das Recht am eigenen Bild ausdrücklich gesetzlich geregelt. Zunehmend zeigte sich jedoch, dass damit kein umfassender Schutz gegen die zunehmenden Beeinträchtigungen des persönlichen Lebens- und Freiheitsbereichs gewährt werden konnte.</p>
<blockquote>
<p>The <strong>right of personality</strong> is a fundamental right that serves to protect a person's personality from interference with their sphere of life and freedom. <em>Personal rights as such are not expressly regulated in German law</em>.  Initially, only individual <strong>special personal rights</strong> such as the right to honor, the right to a name or the right to one's own image were expressly regulated by law.  Increasingly, however, it became apparent that no comprehensive protection against the increasing impairments to personal life and freedom could be granted.</p>
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<p>...</p>
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<p><a href="https://albertahumanrights.ab.ca/publications/bulletins_sheets_booklets/bulletins/Pages/obtaining_med_info_in_workplace.aspx#Privacy" rel="nofollow noreferrer">The employer may only ask for the information that is necessary to make decisions about accommodating the employee, providing disability leave, or assessing if the employee can return to work. Only in exceptional circumstances will the employer have the basis to request the diagnosis.</a></p>
<p>The employer is <strong>not</strong> entitled to:</p>
<ul>
<li>contact the employee's doctor by phone.</li>
</ul>
<p>Even a confirmation that the doctor saw the employee should be made in writing. If the employee gives permission to contact the doctor directly, this contact should be made in writing. Talking to the doctor on the phone may result in confidential information being inadvertently released and a potential violation of the employee's privacy rights. The employee may also see it as intrusive and harassing.</p>
<ul>
<li>terminate the employee before exploring the duty to accommodate to the point of undue hardship.</li>
</ul>
<p>The employer may argue that the requested accommodation is an undue hardship. However, to determine this, the employer must examine the options available and the reasons these would result in an undue hardship to the employer. This is more than a one-time effort by the employer. For more information on accommodation and undue hardship, see the Commission's interpretive bulletin Duty to Accommodate.</p>
<ul>
<li>demand a definitive opinion that the employee will have no further medical problems.</li>
</ul>
<p>It is unreasonable to expect a doctor to guarantee that an employee's disability is completely resolved or that they will have no further medical issues. Such a demand would reasonably be considered harassing.</p>
<ul>
<li>request medical information that is not employment-related.</li>
</ul>
<p>Only information that is related to the employee's ability to work is relevant to the analysis of an employer's needs. For instance, an employer does not need to know information about an employee's restriction on lifting if their job does not involve lifting.</p>
<ul>
<li>know the employee's diagnosis, except in limited cases.</li>
</ul>
<p>To request a diagnosis, the employer must show that the information is necessary and that they have tried all other methods to assess the employee's ability to return to work or accommodation needs.
If the employer can satisfy the legal requirement to show it is reasonable to request the diagnosis, then the employer must make sure the employee's privacy rights are protected.</p>
<blockquote>
<p>Mental disability means any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder.</p>
<p>Physical disability means any degree of physical disability,
infirmity, malformation or disfigurement that is caused by bodily
injury, birth defect or illness and, without limiting the generality
of the foregoing, includes epilepsy, paralysis, amputation, lack of
physical co-ordination, blindness or visual impediment, deafness or
hearing impediment, muteness or speech impediment, and physical
reliance on a guide dog, wheelchair or other remedial appliance or
device.</p>
</blockquote>
