How to Implement a Workplace Vaccine Passport Policy
The 5 things to do to keep vaccination verification policies legally compliant.
The COVID-19 vaccinations currently available have been shown to be safe and effective in preventing the spread of coronavirus. They’re also free. But while governments have gone to great lengths to encourage people to get vaccinated, they haven’t mandated it. Even so, provinces like BC and Québec have ratcheted up the pressure by adopting passport systems restricting travel and participation in nonessential public activities like attending concerts or sporting events to individuals who provide verification that they’ve been vaccinated.
Like many employers, you may be considering implementing a vaccine passport policy to keep COVID from spreading at your workplace. Are you allowed to do this?
Current guidance suggests that employers may implement a workplace COVID-19 passport policy under 5 conditions:
- There’s an evidence-based need to verify vaccination status to prevent transmission;
- There are no less restrictive alternatives;
- You comply with privacy laws by requiring no more personal information than you need to verify vaccination status; and
- You comply with human rights laws by making necessary accommodations to the point of undue hardship; and
- You constantly monitor and revise the policy as public health guidelines and the pandemic situation evolves.
What Is a Vaccine Passport?
A “vaccine passport” is a commonly accepted means of showing that the holder has received the COVID-19 vaccine. Some provincial governments are creating official, uniform cards that individuals must display. However, there are lots of ways to verify a person’s vaccination status. Accordingly, passports can take many forms, both digital and hard copy, including a signed letter from a doctor, certificate from a vaccine provider or even a personal attestation.
In the workplace context, employers require workers and perhaps customers, vendors and other visitors to produce their “passport” to gain entry into the facility. Those who cannot or will not do so aren’t allowed in.
Are Vaccine Passports Legal?
The short answer to this question is that we don’t know. As with so many other COVID-19 legal issues, vaccination passports are a novel concept not governed by statutes, regulations or court cases. We do know that asking individuals to verify their vaccination status raises privacy issues; we also know that denying them entry for refusing to provide such verification also raises red flags under discrimination laws.
Until courts weigh in, all of what we know about the legality of vaccine passports and other COVID-19 measures comes from government guidance. And from almost the moment the public health emergency began, public health departments and privacy and human rights commissioners have made it clear that, at least for the time being, normal privacy and discrimination protections must give way to the imperative to stop COVID-19. According to January 2021 guidance from the Ontario Human Rights Commission, “requiring proof of vaccination to ensure fitness to safely perform work may be permissible if the requirement is made in good faith and is reasonably necessary for reasons related to safety.”
Even so, privacy and human rights laws remain very much in play and there are limits to how far employers can go to prevent COVID from spreading in the workplace. The key to compliance is keeping your vaccine passport protocols within these boundaries. There are 5 things you must do to accomplish that goal.
1. Ensure Vaccine Passports Are Needed to Prevent Workplace Infection Risks
While medical screening of any kind is privacy invasive, public health guidelines call on employers to perform it to ensure persons with infections, symptoms or recent exposure don’t get into the workplace and infect others. Vaccine passports are essentially an extension and different form of medical screening. “No one’s safety should be put at risk because of others’ personal choices not to receive a vaccine,” notes the BC Human Rights Commissioner.
However, you can’t just take it for granted that a passport system is necessary in your own workplace. Guidelines from privacy and human rights commissions stress the need for making “evidence-based” decisions based on an assessment of the actual transmission risks at the particular facility based on risk factors like the operations performed, social distancing, the most recent public health guidelines and the current state of the pandemic—for example, whether outbreaks are actually occurring.
2. Consider Less Intrusive Alternatives
Vaccine passports must also be “proportional” to the risks they address, and resorted to only when there are no less intrusive methods available for containing infection risks. Less intrusive alternatives may include social distancing, face masks and allowing workers to work from home.
3. Minimize Privacy Intrusions
Whether a person has received a vaccination would be deemed personal health information (PHI) that privacy laws ban employers from collecting, using or disclosing without consent. Exception: Employers don’t need consent to collect PHI to carry out legitimate and essential employment functions. During the pandemic, privacy commissions have indicated that pre-entry medical screening is a legitimate infection control measure. These same principles apply equally to requiring proof of COVID vaccination.
Caveat: You’re allowed to use only the minimum PHI necessary to accomplish this purpose. Example:
- OK: Asking workers if they’ve been vaccinated for COVID;
- Not OK: Asking workers if they have any non-COVID related medical conditions or what medications they use.
Strategic Pointer: Keep a list of workers who produce verification of vaccine rather than ask them to produce a passport each time they seek entry into the workplace.
4. Make Necessary Accommodations
Differentiating between workers who are and aren’t vaccinated involves risk of illegal discrimination. Explanation: Vaccination status is not in itself protected characteristic like race, sex, age, etc. “In my personal opinion, a person who chooses not to get vaccinated as a matter of personal preference—especially where that choice is based on misinformation or misunderstandings of scientific information—does not have grounds for a human rights complaint against [an employer] implementing a vaccination status policy,” according to the BC Human Rights Commissioner.
However, denying entry to the non-vaccinated may become discriminatory if the person can’t get vaccinated is due not to a mere personal preference but a disability, language barrier, religious belief or other characteristic that the human rights laws do protect. Accordingly, employers must accommodate people who are unable to get the vaccine to the point of undue hardship. Accommodations may include letting workers work from home or allowing them in but requiring them to self-isolate, wear a mask at all times and/or engage in medical self-monitoring.
The question of whether any particular accommodation is reasonable varies by the circumstances involved. The only blanket rule is that there are no blanket rules other than that you have a duty to individually assess each case by engaging in a flexible, interactive process to determine what accommodations are reasonable and necessary in the circumstances.
5. Constantly Monitor and Modify Your Policy
If you do implement a vaccine passport policy, do so for the shortest possible length of time. You also need to constantly monitor the most recent public health guidelines and health situation and change the policy accordingly. It’s a dynamic equation that you must constantly revisit as the situation changes.