Canada seems poised for a resolution of the COVID-19 pandemic, with vaccines planned for roll-out in the coming months. On Dec. 9, Health Canada authorized the use of Pfizer-BioNTech’s COVID-19 vaccine. Much ink has been spilled on who should get priority access to vaccines, but less attention has been given to whether governments or the private sector will require individuals to provide proof of vaccination and if so in what contexts.

It seems likely that governments, hospitals and long-term care (LTC) homes may require proof of vaccination, for example, on the part of health-care workers. Beyond the health-care sector, there will be other settings where vaccination certification could be asked for. But vaccine certificates raise significant legal, ethical and policy concerns. Either governments or private companies could offer vaccine certificates but either way policy-makers must lay out clear rules for how certificates will be rolled out and regulated, both as to how they are designed (particularly security and privacy features) and how they will be implemented across the public and private sectors.

The most obvious place that a vaccine certificate could be required is when we are travelling. The International Health Regulations currently only require certification for Yellow Fever vaccination if arriving from an affected area as designated by the World Health Organization. It’s possible the regulations could be amended to include COVID-19.

In the private sector, airlines may independently require proof of vaccination. However, the fact that vaccines will be prioritized for the most vulnerable – resulting in the healthy and able-bodied who are most likely to travel being last in the queue – lessens this likelihood as many potential customers would be excluded. Within Canada, it is possible that, for example, the Atlantic provinces, which have restricted travel for non-residents, may now permit individuals to enter with a vaccine certificate and potentially avoid the quarantine period.

Health-care workers will be prioritized as initial vaccine recipients and over time might find they are required to provide proof of vaccination as a condition of employment, thus making vaccination a de facto condition of work. Residents of LTC homes and their loved ones will also be among the first recipients of a vaccine given the devastation wrought on this population through the pandemic. And it is possible as well that LTC facilities – both publicly funded nursing homes and privately financed retirement homes – might require proof of vaccination as a condition of residence or in order to visit loved ones.

Beyond the health-care and LTC sectors, several work environments pose a higher probability of transmission of the coronavirus due to challenges that include social distancing and poor ventilation. In these cases, private corporations may request vaccination certificates from their workers. As time passes and vaccines become more available, many more workplaces may require proof of vaccination status for all employees, if only so that unvaccinated workers can be asked to stay home during outbreaks.

Finally, private owners of sporting arenas and concert venues may require proof of vaccination to gain entry. Ticketmaster in the United States has indicated it is considering this approach. Beyond that, vaccine certificates may be required at a range of enclosed public spaces, such as shopping malls, bars and restaurants. Schools are also potential candidates, though as of yet we do not have data on the effectiveness and safety of the vaccine in children. Nevertheless, many countries have introduced school shutdowns as part of their pandemic response, and vaccination certificates could offer a path to reopening.

Certification will be complex and potentially digital

The information contained in a vaccine certificate will be more complex than simply whether the bearer has been vaccinated. As real-world evidence evolves, a vaccine certificate may need to distinguish between different vaccines and record whether a person has received the necessary number of doses and boosters.

Over the next weeks and months, provincial governments must collect and provide data on the real-world effectiveness of the vaccines – for example, how well the different vaccines are working for people taking other prescription drugs, or how they work on children. We also urgently need to establish whether the vaccines eliminate the potential of transmission from a vaccinated individual to another unvaccinated individual. The federal government will need to have access to the totality of the data to assess the ongoing safety of various vaccines and will need to negotiate with provinces for the provision of this data. Vaccination certificates will need to keep up with changing evidence of effectiveness, the need for boosters to maintain immunity, and so on.

The dynamic nature of the science is best suited to digital certification solutions. Either governments or private entities could issue vaccination certificates although it would be preferrable to have one government-authorized vaccination certificate for each province (and agreement to recognize vaccination certificates from other provinces). People would download their certificates from a portal onto a mobile device and include digital signatures to ensure their authenticity. Features such as QR codes could also be part of the certificates, permitting them to be scanned at the entrance to a facility. Those without mobile devices could carry the certification within a card, perhaps on their health cards.

Irrespective of their format, certificates will need to include one or more unique identifiers (such as the individual’s name and health-card number) to establish the vaccinated person’s identity. Certificates may also include other kinds of personal information (such as the individual’s photo, address, or biometric identifiers) to facilitate the authentication of the bearer’s identity.

Legal issues in requesting certification

In some circumstances requiring a vaccination certificate may be viewed as tantamount to requiring someone to be vaccinated. However, the scanning of vaccination certificates doesn’t necessarily mean that non-vaccination is a barrier to access; in some cases, the certificates may be used simply to keep of a record of who has been vaccinated. Identifying someone as vaccinated or not is important to protect the individual and to protect others if a COVID-19 case is linked to a place where the individual has visited.

Should federal or provincial governments exercise their respective powers to require some or all persons to be vaccinated, this would constitute forced medical treatment – something that has been effectively forbidden for competent adults under the Canadian Charter of Rights and Freedoms section 7 right to life, liberty, and security of the person.

Vaccine certification is a less draconian option – in line with the generally accepted practice in some provinces of requiring proof of vaccination for school attendance. If government were to impose a “vaccinate-or-stay-home” rule on health-care workers, for example, it is unlikely this would be overturned by the courts, because s.7 has consistently been interpreted as excluding economic rights, including the right to work. Notwithstanding, there will still be concerns about individual privacy, and governments must make exceptions for individuals who can’t be vaccinated because of pre-existing conditions or bona fide claims of religion or conscience.

Clear rules are essential

Canadian governments may be tempted to leave decisions about requirements for vaccine certification to individual hospitals, long-term care homes, private retailers and vendors and so on. In our view, this would be a mistake. Clear coherent rules are needed across the public and private sectors to ensure good stewardship of vaccine certification requirements. Careful consideration needs to be given to what would happen in certain scenarios – for example, when an individual without an authorized vaccination exemption attempts to take public transit or access health-care services.

Governments should also make clear when the interests of the vulnerable make it necessary to produce a vaccine certificate, for example, for those working with the frail elderly in long-term care residences or their visitors. Again, it may not be necessary to insist upon vaccination but having this information can help to ensure other precautionary measures – masking and social distancing – are taken.

Assuming that there is fair distribution of vaccinations (on the basis of public health prioritization rather than the ability to pay), digital vaccine certificates hold great promise to safely permit the gradual opening up of parts of society. Requiring a vaccine certificate may be seen as an indirect way to force someone into being vaccinated and sometimes this may be the case – for example, if they face the threat of losing their job. In other circumstances, a vaccination certificate might be requested, but not necessarily the vaccination itself – the certificate will simply provide others with the information they need about the person’s status to take necessary COVID-19 precautions.

In either case, it is imperative that provincial governments give careful thought to both the design and ramifications of using vaccine certificates across the public and private sectors. They must put in place clear rules for their deployment that evolve as the science evolves, and that judicially balance any adverse impacts on individuals with public health benefits.

The authors are very grateful to Bryan Thomas, adjunct professor at the Faculty of Law, University of Ottawa, for his superb feedback on various drafts of this piece.

Photo: Lorna Lucas, 81, reacts as she receives the first of two Pfizer/BioNTech COVID-19 vaccine jabs shortly before her husband, Winston, also has one administered at Guy’s Hospital in London, U.K., on Dec. 8, 2020. (Victoria Jones/Pool via AP)

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Colleen M. Flood
Colleen M. Flood (FRSPC, MACSS), titulaire de la Chaire de recherche en droit et politiques de la santĂ© de l’UniversitĂ© d’Ottawa, est la premiĂšre directrice du Centre de droit, politique et Ă©thique de la santĂ©.
Vivek Krishnamurthy
Vivek Krishnamurthy is the Samuelson-Glushko Professor of Law at the University of Ottawa and a Fellow at the Carr Center for Human Rights Policy at the Harvard Kennedy School.
Kumanan Wilson
Dr. Kumanan Wilson is a senior adviser in digital health at BruyĂšre, an academic health care organization, and a general internist at the Ottawa Hospital. He is a professor of medicine at the University of Ottawa and a member at its Centre for Health Law, Policy and Ethics.

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