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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).

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?

According to the Canadian Human Rights Act

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.

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?

Has legislation been passed to make an exception for COVID vaccination status?

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  • I don't know anything about Canada specifically but I know the general conflict between employers not allowed to know employees medical info and being required to enforce Covid-19 measures exists in other places as well. If there is a law that employers need to check Covid-19 vaccinations than this will be the place where it is explained how this interacts with privacy of medical information. If there is no law but just employer rules I think the employer can't really do much.
    – quarague
    Feb 12 at 7:05
  • I was wondering if there was a general law prohibiting employers asking about vaccinations, but I would be interested if there was an exception to it made for COVID. Feb 12 at 8:34
  • It is usually prohibited to avoid discrimination based on disability, and privacy legislation prohibits unjustified collection of personal data. However, bona fide occupational requirements can justify discrimination, e.g. in person workers, workers needing to cross international borders. Asking it for e.g. a completely remote position done at home would probably be illegal.
    – xngtng
    Feb 12 at 8:46

2 Answers 2

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An employer has the responsiblity to safeguard the health of all their employees (Fürsorgepflichten des Arbeitgebers, Employer Duty of Care).

§618(1) Duty to undertake protective measures - German Civil Code (BGB)
(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 the person obliged to perform services is protected against danger to life and limb to the extent that the nature of the services permits.

How the duty of care is to be implemented in concrete terms is described in more detail in numerous other laws.

The employer must always weigh the employee's personal rights against the employer's operational interests. When asking questions, the employer may only have the specific position in which the employee is to be employed in mind and check its requirements. Where there is no need to know, the employer cannot ask.

An employee has certain personal rights (Persönlichkeitsrecht), but only in so far as it doesn't violate the rights of others.

Article 2 Personal freedoms - Basic Law for the Federal Republic of Germany
(1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.
(2) Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.

So a balance must exist between the rights and responsibilities of both parties.

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 (right of physical integrity) begins.


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 ...?

There is no vaccine against Hepatitis C, so I will use Hepatitis B (which is spread by some body fluids) instead.

Is it likely, that a employee who is not vaccinated against Hepatitis B poses a general danger to the other employee's?

  • No, therefore it would be illegal for the employer to ask if the employee is vaccinated against it

ADHD could count as a disability so I guess an employer can't ask about that. Is my understanding correct?

An employee is not required to inform the employer of a officialy recognized disability (Schwerbehinderung).

If they do not, they cannot utilise the certain protections that the officialy recognized disability brings with it.

If they do inform the employer, then the employer is not permitted to ask about the cause of the disability.


Has legislation been passed to make an exception for COVID vaccination status?

Yes, § 36(3) - Infektionsschutzgesetzes defines for specific occupations (defined in § 36(1,2)) for a restricted period of time (presently until 2022-03-22) and a epidemic situation of national concern, determined by parlament, is in effect.

FAQ Impfstatusabfrage bei Arbeitnehmerinnen und Arbeitnehmern - Bundesgesundheitsministerium
Do you have to prove the vaccination status or just state that you have been vaccinated?
The employer can, if and to the extent necessary to prevent the spread of the coronavirus disease 2019 (COVID-19), request information from the employees about the existence of vaccination protection.


Persönlichkeitsrecht (Deutschland) – Wikipedia
Das Persönlichkeitsrecht ist ein Grundrecht, das dem Schutz der Persönlichkeit einer Person vor Eingriffen in ihren Lebens- und Freiheitsbereich dient. Im deutschen Recht ist das Persönlichkeitsrecht als solches nicht ausdrücklich geregelt. Zunächst wurden lediglich einzelne besondere Persönlichkeitsrechte 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.

The right of personality is a fundamental right that serves to protect a person's personality from interference with their sphere of life and freedom. Personal rights as such are not expressly regulated in German law. Initially, only individual special personal rights 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.

...

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  • There are exceptions for Meldepflichtige Krankheiten as in Plague and Cholera, or such that disqualify from working in some trades (temporarily)
    – Trish
    Feb 12 at 11:01
  • @Trish Does the Plague and Cholera poses a general danger to the other employee's?: Yes. It is the same basic question. Just as an employee who has Hepatitis B should report sick or can be sent home by the employer. Feb 12 at 11:08
  • @Trish Also Meldepflichtige Krankheiten (Notifiable diseases) must be reported to the responsible health authorities (Gesundheitsamt) and not to the employer. Feb 12 at 11:25
  • Why do you say that it is illegal to ask an employee if they are vaccinated against hepatitis B? Is it a violation of the “right to free development of his personality”?
    – sjy
    Feb 12 at 22:02
  • 1
    @sjy It is derived from the term Persönlichkeitsrecht, the details of which is not expressly regulated in German law. (See added link and partial quote). Feb 13 at 22:14
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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.

The employer is not entitled to:

  • contact the employee's doctor by phone.

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.

  • terminate the employee before exploring the duty to accommodate to the point of undue hardship.

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.

  • demand a definitive opinion that the employee will have no further medical problems.

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.

  • request medical information that is not employment-related.

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.

  • know the employee's diagnosis, except in limited cases.

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.

Mental disability means any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder.

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.

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