Molly Reynolds on proof of vaccinations for organizations

July 21, 2021

As businesses begin to re-open in accordance to provincial and federal public health orders, employers are looking to ensure the safety of their employees and customers.

In an interview with the Canadian Press, and picked up by several outlets including CTV News and The Globe and Mail, Privacy counsel Molly Reynolds noted an increased interest from Canadian businesses for policies that would require customers to provide proof of COVID-19 vaccinations before receiving any service.

"There are businesses of really every size, and in really every industry, who are thinking about this," Molly said.

“(They are thinking) in terms of what should they be doing to protect their customers and protect their employees and then also thinking whether any centralized provincial or federal government vaccine passports might be tools that they can use as part of considering rules around access to their premises.”

She added that no tool currently exists and no public health authority in Canada currently requires businesses to ask for proof of vaccination, such as a document or a verbal confirmation. But no one has said they can't do it either.

Businesses considering such a policy should be able to show that the privacy infringement is worth it if it protects communal health.

Read: Q3 Torys Quarterly: Proof of vaccination: privacy considerations for businesses

Molly also discussed the matter on the Roy Green Show, explaining that private sector privacy laws already speak to the issue of proof of vaccine.

“When you ask somebody either to tell you whether they’ve been vaccinated or to actually show a document proving that they have been, you’re asking them for personal health information,” Molly said.

“So, a business’s usual obligation around lawfully collecting and then using that type of personal information kicks in.”

However, there is no clear guidance from privacy regulators across the country around what circumstances would warrant asking for proof of vaccination versus when it would be a privacy infringement.

“In the absence of guidance from government or from privacy regulators, most businesses are going to be safer if they’re erring on the side of voluntary requests to customers,” Molly said.

“For the circumstances where you could actually make it mandatory to show proof of vaccination, you have to have much more unusual circumstances.

“It has to truly be necessary to get that proof of vaccine, for example, because the business may be serving vulnerable people who are particularly at risk or other circumstances that won’t apply to most businesses.”

Molly envisions some form of passport system implemented across Canada, both at the federal and provincial levels. A federal vaccine passport system primarily used for international travel is likely.

Meanwhile, provinces might also start considering domestic passport systems where individuals can use it to access government services and some non-essential business services and events, much like what’s being proposed in Québec. She says it’s unlikely that there will be a system where you’ll need proof of vaccination to access essential services, such as grocery stores.

In addition to the privacy laws, Molly told the CBC Cross Country Checkup in a Q&A interview that businesses need to consider existing human rights, employment law, and health and safety factors as well when considering proof of vaccination policies.

“If somebody is medically ineligible for a vaccine, that could be considered a basis of discrimination for disability status if people were denied services as a result.

“Similarly, if somebody has chosen not to take a vaccine because of a truly-held religious belief, that would be a human rights code ground, where somebody can't be denied service on that basis,” Molly said.

A business may have to either allow individuals to access services or go quite far to provide them with alternative means, for example, of remote or contactless access to those services.

“I expect that public health and hopefully other agencies, like human rights agencies and privacy regulators, will work together so that there can be provincial or federal guidance on the type of workplace where these types of restrictions may be appropriate and wouldn't put the business at risk of being offside of privacy law,” Molly said.

You can learn more about our Privacy work on our practice page.

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