COVID-19 Vaccine Passport versus the Right to Privacy

As B.C. plans a hopeful reopening, many major decisions are still on the horizon to help return Canadians back to “normal life.” One significant consideration is the implementation and use of a COVID-19 vaccine passport. In a joint statement on May 19, 2021 by the Federal, Provincial and Territorial Privacy Commissioners (the “Joint Privacy Statement”), they urged the government to keep privacy concerns front of mind when evaluating a COVID-19 vaccine passport.

A COVID-19 vaccine passport provides proof that the individual has been vaccinated against COVID-19. It may be digital or in paper form. From a privacy perspective, a vaccine passport holds personal health information. The Joint Privacy Statement warns that requiring this personal information “is an encroachment on civil liberties that should be taken only after careful consideration.”

There have been many questions about the breadth of vaccine passport usage. Will the vaccine passport be required in order to go to a store or restaurant, gain access to large sporting events or concerts, or travel internationally?

In a press conference on May 25, 2021, Dr. Bonnie Henry, B.C. Provincial Health Officer, stated that she is working with the ombudsperson regarding the vaccine passport but advised that she would be advising against requiring a vaccine passport to access services within B.C. She noted that the pandemic has already exacerbated inequities in our society and she does not want to increase inequality within B.C. through the use of a vaccine passport. However, Dr. Henry also noted that she believed that “something” will be required in order for Canadians to participate in international travel.

It is likely that this “something” will be a vaccine passport. Regardless of Canada’s own opinion on the vaccine passport, something of that nature will likely be required for Canadians to gain access to cross certain borders. It is important to note that the concept of requiring proof of vaccination to travel is not an entirely new concept. For example, proof of yellow fever vaccination has been required for International travellers visiting certain countries.

Nonetheless the vaccine passport requirement must be balanced with the need to protect the privacy of Canadians. Even during the COVID-19 health crisis, privacy legislation and principles are still in effect.

The Information & Privacy Commissioner for B.C. states that in order to address privacy concerns a vaccine passport should be “necessary to achieve the intended public health purpose; … effective in meeting that purpose; and the privacy risks must be proportionate to the purpose, i.e. the minimum necessary to achieve it.”

The Commissioners state that COVID-19 conditions should be monitored continuously to determine if a vaccine passport is a necessary, effective, and proportionate response to address health concerns. If conditions change and a vaccine passport no longer follows these principles, the passport should no longer be required.

The Commissioners also warn that there should be safe guards in place to protect personal health information collected through a vaccine passport system and this information should be destroyed after it has served its intended purpose.

The full text of the Joint Privacy Statement by the Federal, Provincial and Territorial Privacy Commissioners is available at: https://www.oipc.bc.ca/media/17359/2021-05-19-fpt-joint-statement-vaccine-passports.pdf.

The news release from the Office of the Information & Privacy Commissioner for British Columbia can be found here: https://www.oipc.bc.ca/news-releases/3538.

Keri Bennett is a lawyer at the Vancouver-based employment and labour law boutique of Roper Greyell LLP and leads the firm’s Freedom of Information and Privacy Practice. She can be reached at kbennett@ropergreyell.com.  For more information about Keri’s practice and Roper Greyell, please visit www.ropergreyell.com.

Kate Jones is an articled student at Roper Greyell and assisted in writing this article.  She is interested in all areas of workplace law, including employment, labour, workplace human rights, and privacy law.