With increasing numbers of Canadians being immunized each day against COVID-19, the question on many peoples’ minds is whether Canadians will be asked to prove they are vaccinated by way of a vaccine passport. Vaccine passports can take a range of forms, but the defining feature is a verified record of a person’s immunization status.
The question many employers are now asking is whether they can require employees to get vaccinated and/or provide proof of immunization against COVID-19.
Last week, the Federal, Provincial, and Territorial Privacy Commissioners issued a joint statement to provide some guidance on the privacy considerations for vaccine passports in Canada. While primarily addressing privacy issues related to proof of immunization for travel or gaining access to services or certain premises or locations, the guidance provides useful assistance for private sector employers who are considering workplace vaccine policies.
The Commissioners acknowledge that there are presently legal challenges in implementing any vaccine passport program or policy. They noted, however, that consent under existing private sector privacy laws can, to an extent, provide organizations with a legal basis for implementing a vaccine program or policy, provided it meets all of the following conditions:
- The consent must be voluntary and based on clear language that describes the specific purpose that the vaccine passport is meant to achieve.
- The policy must be necessary to achieve the purpose.
- A reasonable person would consider the purpose to be appropriate in the circumstances.
- People must have a genuine choice about whether to provide their consent.
Given the existing science and workplace regulations which do not differentiate between those employees who have been inoculated and those who have not, there are a number of reasons why it would be rare for a workplace policy to meet these conditions. The Commissioners point out that: “we have not [yet] been presented with evidence of vaccine effectiveness to prevent transmission, although members of the scientific community have indicated that this may be forthcoming.” Previous arbitral decisions reviewing influenza/masking policies in the workplace have looked to expert scientific evidence on this point. Without such evidence, demonstrating that the policy is necessary to achieve workplace health and safety purposes will be difficult to establish for employers. In any event, since existing workplace regulations (e.g. WorkSafeBC guidelines and workplace-specific public health orders) apply equally to vaccinated and unvaccinated employees, it is unlikely that the use of vaccine passports would serve a discernible purpose in most cases. As a result, under the current rules, the collection and use of vaccination information by most private sector employers would probably fail the reasonable person test.
The Privacy Commissioners make the case that employees must have a true, genuine choice about whether to provide vaccination information to their employer. In addition to purely privacy reasons, there are good employment law and human rights reasons why employers cannot typically make vaccination and/or the disclosure of vaccination information a condition of employment. For example, in some cases, employees may have valid medical reasons to not get vaccinated. In these cases, private sector employers may need an alternative plan and accommodations in place.
Overall, the Privacy Commissioners are not saying “no” to vaccine passports or employer vaccination policies. However, they have highlighted some of the challenges that employers will face in implementing such programs and policies.
As our knowledge about COVID-19 and the efficacy of its vaccines is ever-evolving, and as governments announce their gradual re-opening plans (the stages of which are tied to vaccination rates), the application of these principles will change. We may also see new legislated rules and public health orders for vaccinated individuals and revised workplace regulations. For example, on May 25, 2021, the B.C. government announced a four-step “restart plan”. Under Step 3 (which is expected to start on July 1, 2021 at the earliest), the B.C. Government noted there will be new public health and workplace guidance around personal protective equipment, physical distancing and business protocols. Provincial officials across Canada have indicated it is unlikely that any new rules will differentiate between vaccinated and unvaccinated people. While changes will likely have an impact on the legal considerations associated with vaccine passports and policies in private sector workplaces, for now, employers should carefully consider the risks before implementing a vaccine policy.