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The Government of Québec recently announced the introduction of a COVID-19 vaccination passport that will be implemented on September 1, 2021. We previously wrote regarding increased talks of proof of vaccination programs and the privacy considerations they raise for businesses1. With infections on the rise and an "inevitable fourth wave on the way," Québec Health Minister Christian Dubé laid out the details of the province's vaccination passport plan, which is expected to apply to certain non-essential activities, namely gyms, bars, restaurants, festivals and event venues across Québec.
What you need to know
- When: starting from September 1, 2021, Québec residents will be required to use the vaccination passport to access certain non-essential services and activities.
- Where: The vaccination passport will be implemented in high-risk activities with a limited number of people (such as gyms, team sports, bars, restaurants, etc.) as well as in moderate or low-risk activities with bigger groups of people (festivals and major events, games at sports stadiums, etc.). For the time being, the vaccination passport will not be required for access in retail stores or schools, but discussions are still ongoing as to whether religious gatherings and weddings will be included as events that require vaccination passports.
- How: The vaccination passport will be displayed as an individualized QR code on a free smartphone app, or on a paper copy for individuals who do not have smartphones. A separate free app for reading the QR codes will be available for businesses to download.
Québec's vaccination passport will be an official digital government document certifying that a person is protected against COVID-19. Fully vaccinated individuals will receive an individualized QR code to be displayed on a dedicated smartphone app, although those who do not possess a smartphone will be able to use the paper vaccination certificates issued at vaccine centres, print out their QR code, or request a paper copy by mail. The Québec vaccination passport is intended to be used only to access non-essential business within the province. In this sense, it differs from the Canadian government's vaccine passport for international travel, although discussions are underway with federal authorities regarding the international or inter-provincial uses of the passport. The September 1start date was selected to give the government time to pilot the program, and to give eligible individuals enough time to obtain both vaccine doses.
As the vaccination passport system is rolled out and more details become available, businesses should be mindful of the legal context in which the system operates and how it may impact them.
Legal basis and human rights legislation
Vaccination passports have raised many issues with respect to their potential impacts on individuals' rights and freedoms. From a legal perspective, any vaccination passport program must balance the Province's public health and safety interests with individuals' rights to privacy, equality and non-discrimination, as well as with more practical considerations such as equality of access to vaccination opportunities. In such a context, governments and businesses alike must be considerate of Québec's Charter of Human Rights and Freedoms (the "Charter").
The framework provided by the Charter is binding on both private and public stakeholders. Sections 1 to 38 of the Charter take precedence over any provisions of the Québec law that are contrary to the Charter. Furthermore, the rights and freedoms guaranteed by the Charter remain applicable even in the wake of a health emergency as provided by the Québec Public Health Act. This includes rights such as the right to personal security, inviolability, freedom of conscience and religion, the right to the safeguard of dignity, honour and reputation, and the right to respect for private life. The Charter does, however, provide that fundamental freedoms must be exercised with regard to democratic values, public order and the general well-being of the citizens of Québec.
In this case, public order and the general well-being of the citizens of Québec appear to be front-of-mind as the government seeks to strike a balance between these laudable objectives and the fundamental rights and freedoms guaranteed to its citizens. Additional considerations are likely to arise as the vaccination passport is launched and its application becomes clearer. For instance, it appears that the initial version of the vaccination passport will not permit considering medical condition or religious convictions as a justification from not being vaccinated. Whether this can be supported on the basis of public health and order remains to be seen.
Key privacy considerations arise in relation to the use of personal health data, which is considered to be sensitive in nature. Recent reforms in guidance from privacy regulators in Québec and in Canada bring heightened protection to personal information, including health data. Increased care must therefore be taken to restrict access to such data unless necessary.
Québec's vaccination passport will rely on an individualized QR code which individuals will display on their smartphones, and which will be readable by the businesses subject to the vaccination passport requirement. It is not yet clear what information will be displayed once the QR code is read by businesses, although Québec authorities have said that the vaccination passport will only reveal an individual's vaccination status and no other identifying information. When questioned about the collection of personal information and privacy concerns, Health Minister Dubé explained that the application would only read the QR code and not collect any other user data, nor would there be a centralized database storing user information. Similarly, the Québec government indicates that the vaccination passport is a "tool that will interpret the information in your proof of vaccination to determine your level of protection against COVID-19. It will not show your personal information or information about your medical or vaccination history."2 Issues such as profiling, geotagging, data retention and storage, and the temporary nature of the vaccination passport will continue to evolve as the pilot project is rolled out and the Québec government provides further details about the application.
While clients of certain non-essential services, such as restaurants and bars, will need to be vaccinated and use the vaccination passport to prove it, Québec's Health Minister Dubé confirmed on August 10, 2021 that there will be no mandatory vaccination requirement for employees working in those non-essential industries. However, safety measures such as physical distancing, masks and other health guidelines will remain in place. Similarly, the Québec government has indicated that employers will not be permitted to require a vaccination passport as a hiring criterion.
As businesses begin to consider their approaches to a return to work, they are increasingly considering whether they can or should be asking employees for proof of vaccination (as a condition of either continued employment or of accessing the physical workspace). As previously discussed by our Pension and Employment group and Privacy group3, adopting a mandatory vaccination policy (and/or requiring employees to provide proof of vaccination) must be shown to be necessary and proportionate. An employer needs to balance their occupational health and safety obligations with the human rights and privacy rights of their employees. There is no "one size, fits all" approach. Given the absence to date from the Quebec government, the decision as to whether to adopt a mandatory vaccination policy (and the legal risks inherent in that decision) falls squarely on employers.
With uneven vaccine distribution, vaccine refusals and hesitancy, and medical contraindications, Quebec employers' demands for proof of vaccination may be met with privacy complaints and lawsuits, employment law claims and/or claims of discrimination under human rights legislation. It is unclear how such claims will be addressed by Canadian regulators and courts. Although it may historically have been challenging for most employers to impose mandatory vaccination requirements, the COVID-19 pandemic is an unprecedented situation and it remains to be seen how (and if) the law will adapt to address the unique and serious risks associated with COVID-19. To that end, we note that the federal government recently announced its intention to require federally regulated workers to be vaccinated. Similarly, the British Columbia government recently announced that all staff in assisted living facilities and long-term care homes in the province must be vaccinated against COVID-19 and the Ontario Chief Medical Officer of Health has recently issued a directive mandating hospitals, community care service providers and ambulance services to have a COVID-19 vaccination policy for employees. The Ontario Ministry of Education also announced the introduction of vaccination disclosure policy for all publicly-funded school board employees, and staff in private schools as well as for all staff in licensed childcare facilities.
These recent developments may be suggestive of a shift in thinking on issues of mandatory vaccination.
If the project goes as planned, Quebec will become the third province in Canada to use a vaccine passport of some kind, after Manitoba and PEI. Indeed, visitors over 12 years old to PEI can apply for a proof-of-vaccination pass to allow them to enter the province without self-isolating (PEI Pass), while residents of Manitoba holding an immunization card can attend sports and entertainment venues, access restaurants, bars and lounges and avoid self-isolation after travelling. Other provinces, such as Alberta, Saskatchewan and Ontario, have said they have no plans to implement a vaccine passport.
Additional details on the Québec vaccination passport app and its modalities, as well as specifics on the businesses who will be subject to the policy are expected to be released on the week of August 23, 2021. In the meantime, Québec is running pilot projects in different businesses across the province.
1 Molly Reynolds, Ronak Shah, Rebecca Wise, Nic Wall and Jake Babad, "Proof of vaccination: privacy considerations for businesses" Torys Quarterly: https://www.torys.com/insights/publications/2021/07/proof-of-vaccination-privacy-considerations-for-businesses.
2 Government of Québec, "COVID-19 vaccination passport", online: https://www.quebec.ca/en/health/health-issues/a-z/2019-coronavirus/progress-of-the-covid-19-vaccination/covid-19-vaccination-passport.
3 Molly Reynolds, Ronak Shah, Rebecca Wise, Nic Wall and Jake Babad, "Proof of vaccination: privacy considerations for businesses" Torys Quarterly: https://www.torys.com/insights/publications/2021/07/proof-of-vaccination-privacy-considerations-for-businesses.
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