Facing up to COVID-19 in the workplace: What you should know

As an increasing number of companies are re-opening their office doors in B.C., employers and employees have questions.

Many of us are left wondering if the current B.C. Public Health Order requiring face coverings applies to our work area, or if business owners can ask if their staff are vaccinated.

In British Columbia, the provincial restrictions were updated on September 2, 2021 to help stop the spread of COVID-19. These are made by the Provincial Health Officer (PHO) under the Public Health Act.[1]

With that in mind, the information in this article may not apply to jurisdictions other than the province of British Columbia.

Do all employees have to wear masks at work, even if they are vaccinated?

The Order defines a “Working Area” as an inside area of a workplace which is solely accessed by employees and to which the public does not have unrestricted access.[2]

The definition of an “Indoor Public Space” specifically excludes Working Areas. It includes the indoor area of a building or structure that is provided for the common use of all occupants and invitees of the building or structure, such as lobbies, hallways, public bathrooms and elevators.

It also involves parts of the office building other than an office, cubicle or other room to which a member of the public has been invited by an operator or worker for the purposes of receiving a service.

Taken together, in an office environment for example, it is highly likely that individual offices, cubicles (and the areas they are located), meeting rooms, kitchens and break rooms would all be considered Working Areas.

The provision requiring the use of masks is as follows:

4   (1) Except as provided under section 5 an operator or worker must wear a face covering while

inside an indoor public space in accordance with subsection (2);

(2) Whether provided in an indoor public space or a working area, an operator or worker must wear a face covering

• (a) when providing a personal service to a client

There are two ways to interpret these provisions. The first is that workers are only required to wear masks while providing services to a client, regardless of whether it is an Indoor Public Space or a Working Area. However, that is likely not the case.

The second interpretation is that workers must wear masks in Indoor Public Spaces and while meeting with clients or visitors in Working Areas. This is more likely the intended interpretation.

As such, masks are mandatory all areas where visitors or clients have unrestricted access, for example in the reception area of an office, regardless of vaccination status. Aside from those areas, everywhere else would very likely be considered a Working Space, and a mask would only be worn when meeting with a client or visitor.

Are employers permitted to ask about a staff members vaccination status?

In short, not without their consent.

The Personal Information Protection Act (the “Act”)[3] defines “Personal Information” as information about an identifiable individual that includes employee personal information but excludes contact information or work product information. This is a very broad definition and naturally catches vaccination status, which is highly sensitive personal health information.

Asking an employee about their vaccination status would be considered the collection of Personal Information, which cannot be done without consent, implicit consent, or otherwise authorized by the Act (s. 6).[4]

For consent to be given for the collection of Personal Information, the organization would have to disclose to the individual, verbally or in writing, the purpose of the collection (s. 10(1))[5]. The purpose of the collection and use of Personal information needs to be one that a reasonable person would consider appropriate in the circumstances (s. 2). Similarly, the Act provides that an organization may only use it to fulfill the purposes for which it was collected (s. 14(b))[6].

Therefore, an employer can ask an employee if they have been vaccinated. However, they must have a reasonably justifiable purpose for doing so, disclose that purpose to the individual, and receive their consent before asking.

Who can I talk to about vaccination status policies?

As recommended by WorkSafe BC, every place of work is different and employers should seek legal advice when implementing a vaccination policy.

It can seem daunting to maintain safety in the workplace whilst respecting and upholding human rights.

If you have questions about COVID-19 implications as an employer or an employee, please contact our team of lawyers by emailing [email protected] or calling +1-604-629-5400 to speak with one of the team who would be happy to help.

**Disclaimer**

The above blog post is provided for informational purposes only and has not been tailored to your specific circumstances. This blog post does not constitute legal advice or other professional advice and may not be relied upon as such.  Furthermore, due to the rapidly changing legal landscape with respect to COVID-19 and our government’s response to the pandemic, the information in this blog post may become out of date.

[1] https://www2.gov.bc.ca/gov/content/covid-19/info/restrictions

[2] https://www2.gov.bc.ca/assets/gov/health/about-bc-s-health-care-system/office-of-the-provincial-health-officer/covid-19/covid-19-pho-order-face-coverings.pdf

[3] https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/03063_01#part1

[4] https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/03063_01#section6

[5] https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/03063_01#section10

[6] https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/03063_01#section14