This warning extends to the Government of Alberta (GoA):
The Office of the Privacy Commissioner of Canada, recently released a joint statement along with provincial and territorial privacy commissioners entitled Privacy and COVID-19 Vaccine Passports (“Joint Statement”). The Joint Statement suggests that the necessity, effectiveness, and proportionality requiring vaccination must be assessed. The Joint Statement also discusses the need for consent or some other legal authority to collect personal health information.
Necessity: Is requiring vaccination objectively necessary to ensure the health and safety of the workplace, such that no less intrusive means are available to achieve this goal?
Effectiveness: Is vaccination empirically proven to be effective at curbing the transmission of COVID-19 in the workplace?
Proportionality: Is the privacy risk associated with the policy proportionate to the issue it is intended to address?
…From a human rights perspective, some employees may be unable to receive a vaccination for reasons relating to disability, religion/creed, or another ground protected under the Human Rights Code (the “Code“). A mandatory vaccination policy should therefore account for an employer’s duty to accommodate to the point of undue hardship under the Code to avoid potential discrimination claims.
…We have yet to see a case involving a mandatory vaccination policy in the context of the COVID-19 pandemic adjudicated in Canada. There is a body of arbitral case law that has developed in the healthcare sector which deals primarily with vaccination policies in the context of influenza vaccines. These decisions do provide some, albeit limited, guidance.
…What is clear from the existing arbitral decisions is that a person’s freedom to make choices regarding their own body is afforded the highest degree of protection. As such, mandatory vaccination policies are likely only to be upheld in contexts where there is a real and justifiable connection to a significant and demonstrable risk to employee, client, and/or patient health and safety.
…The availability of other less intrusive means of protection are likely all to be relevant factors when it comes time to assess whether mandating COVID-19 vaccination is necessary or appropriate in any given workplace setting.
…There are also some clear unknowns surrounding the above factors at the present time. For instance, we do not currently know how long vaccinations will last, whether an annual booster shot may be required, and the specific extent to which vaccination curbs transmission of the virus in the workplace.
…Given all the above, the implementation of a mandatory vaccination policy may be met by legal challenge, which may include the following: