In August 2021, many employers in Ontario, Canada, brought in COVID-19 mandates requiring, inter alia, employees to disclose their vaccination status and/or to take antigen testing and disclose the results. Many employees have asked me whether this was legal.

In Ontario, and in accordance with the Occupational Health & Safety Act, (Ontario) (“OHSA”) employers cannot seek to gain access to their employees’ health records without the employee’s written consent except where the employer obtains an order from a Court or Tribunal or where the employer is compelled by a statute.¹

There is no legislation or statute in Ontario compelling employers to require employees to disclose their medical data. Therefore, if you as an Ontario employee do not provide your written consent to disclose your health records, then your employer will have to obtain a Court or Tribunal order. Absent a Court or Tribunal order requiring to you disclose your health data, your employer cannot seek to gain access to your health records.

The OHSA further states that no employer can reprise against you because you seek to uphold your rights in the OHSA (in this case, not to disclose your medical data). Reprising includes disciplining or threatening to dismiss, suspending or threatening to suspend, intimidating, coercing, or imposing any penalty upon a worker.²

If your employer reprises against you because you have not disclosed your medical data, then your employer has breached s.50 of the OHSA and may be subject to a penalty (upon conviction) of a fine up to $1,500,000.³

If your employer has reprised against for you not disclosing your medical data, please call me todiscuss.

¹ Occupational Health & Safety Act, RSO 1990, c. O.1, s.63(2).
² Occupation Health & Safety Act, RSO 1990, c. O.1, s.50(1).
³ Occupation Health & Safety Act, RSO 1990, c. O.1, s.66.