COVID-19 | Are Vaccine Passports Controversial?

By Myrna El Fakhry Tuttle

Reposted from LawNow 45(6) with permission

Vaccine passports could be required to travel, to access some locations, or to receive goods and services. What should we be concerned about?

As the rollout of COVID-19 vaccines speeds up in Canada and around the world, we are talking about going back to our pre-pandemic lifestyles. But to return to normal life, we might be asked by employers or service providers to show vaccine passports as proof we are vaccinated.

Canada still has not adopted any kind of vaccine passport program. The federal government has been talking about requiring a standardized document for international travel only. That leaves it up to the provinces to develop some sort of document for domestic use.

Vaccine passports could be required to travel, to access some locations, or to receive goods and services. According to a May 2021 survey, 61% of Canadians agreed that vaccine passports should be required for public gatherings, sporting events, restaurants and businesses. Also, 79% supported the idea of vaccine passports for domestic and international travel. 

A vaccine passport could be a certificate – paper or digital – containing personal health information. Individuals could be required to show the certificate in exchange for goods, services or access to some venues. Therefore, vaccine passports – particularly digital ones – have raised privacy and discrimination concerns.

What is Privacy?

Privacy is a fundamental right that allows us to:

create barriers and manage boundaries to protect ourselves from unwarranted interference in our lives, which allows us to negotiate who we are and how we want to interact with the world around us. Privacy helps us establish boundaries to limit who has access to our bodies, places and things, as well as our communications and our information.

Canadians’ personal information – held by governments and private entities – is protected by:

·       the Canadian Charter of Rights and Freedoms (the Charter) which does not mention privacy but provides protection under sections 7 and 8,

·       the federal Privacy Act which manages the collection, use, disclosure, retention and disposal of personal information within federal government jurisdiction,

·       the Personal Information Protection and Electronic Documents Act (PIPEDA), and

·       provincial and territorial privacy laws, such as the Personal Information Protection Act (PIPA) in Alberta.

The Office of the Privacy Commissioner of Canada stated:

Privacy is not simply a precious and often irreplaceable human resource; respect for privacy is the acknowledgement of respect for human dignity and of the individuality of man.

In addition, the Supreme Court of Canada has ruled that the privacy rights of Canadians have a quasi-constitutional status. 

Vaccines Passports and Privacy

As mentioned earlier, vaccine passports would require individuals to disclose personal health information – about their vaccination status – to protect public health.

Disclosure of personal health information is an infringement on our privacy rights. Currently, there is no legislation that allows a business to have a vaccine passport program. A business will have to comply with privacy laws and rely on individuals’ consent in collecting the personal health information included in the vaccine passport.

If a private business wants to provide a safe environment by requiring vaccine passports of its customers or employees, they must establish the necessity, effectiveness and proportionality of these passports:

Vaccine passports need to be shown to be necessary to achieve the intended public health purpose; they need to be effective in meeting that purpose; and the privacy risks must be proportionate to the purpose, i.e. the minimum necessary to achieve it.

Similarly, employers will have to show how the collection and use of the data or vaccination status is fair, necessary and relevant to return to work or have a safe workplace environment. According to Tory’s LLP, “an employer’s reason for recording its employees’ vaccination status must be clear and compelling”.

According to Ann Cavoukian, Ontario’s former information and privacy commissioner:

[N]obody should have access to an individual’s vaccination status, except for that person. You should be the one to control who you choose to reveal that to: so if you are at the airport, you’re going to have to reveal it to the attendant, but that should be the extent of it digitally. They shouldn’t retain the data.  

Vaccine Passports and Discrimination

Some people cannot get vaccinated for medical, disability or religious reasons. When it comes to vaccine passports, these individuals may be discriminated against. Even if the vaccine passport points out that these individuals are “medically exempt”, they may still be treated differently.

Private entities must comply with provincial human rights acts. This means that proof of vaccination programs must not discriminate against those who cannot get vaccinated:

Human rights legislation also affords individuals protection from discrimination in the area of goods, services and facilities. Accordingly, if a proof of vaccination program will result in differential treatment of unvaccinated customers, businesses will need to consider how to accommodate customers who cannot or choose not to be vaccinated on the basis of a prohibited ground of discrimination. (see my article “Can Private Businesses Ask for Proof of COVID-19 Vaccination?”).

A few things for governments and businesses to keep in mind:

·       It is important to make sure people who can’t be vaccinated (for example, for health reasons or because they are children, etc.) are not discriminated against and are able instead to produce proof of a negative COVID-19 test.

·       It is important that all Canadians have access to essential services, like grocery stores and health care. This might mean precautionary measures, such as masking and physical distancing, should continue in these settings.

·       Finally, those without access to digital technologies must be able to use appropriately verified paper records.

Conclusion

At this time, the federal government has decided to leave vaccine passport programs to the provinces. Alberta has decided against such a program, though other provinces have said they will bring in vaccine passports. Many businesses are also considering proof of vaccination to provide services.

Vaccine passports may help end the pandemic and allow us to return to normal life. If so, vaccine passport programs must be created and regulated by governments to protect our privacy. It must be clear who can ask to see our vaccine passport, and how information will be collected, used, retained, and verified. In addition, an exception should be made for those who cannot be vaccinated.