Legal risk associated with requiring proof of COVID-19 vaccination is low: experts

COVID-19 vaccine passports and proof of vaccination are currently hot topics in Alberta.

On Thursday, the Alberta government released a proof of vaccination FAQ page, where the province doubled down on its stance of not implementing rules that require people to prove they are vaccinated to access certain services.

One particular line on the page caught some attention from some who look at the issues closely.

“I find it frustrating from a policy level and frustrating from a legal perspective too,” said Timothy Caulfield, Canada research chair in health law and policy at the University of Alberta, .

The line that raised eyebrows for some noted that “private businesses and municipalities’ decisions may be subject to legal challenges by individual Albertans.”

The statement was an odd one to include on a frequently-asked-questions page, Caulfield said.

“Anyone can sue,” he said. “That’s something that can happen in any space at any time. That doesn’t mean you’re going to be successful. ”

Lorian Hardcastle, an associate professor in the Faculty of Law & Cumming School of Medicine at the University of Calgary, commented on the statement as well.

“It’s less about them thinking that businesses and municipalities have significant legal exposure, but more a political statement to distance themselves from vaccine passports, which they’ve been opposed to all along,” she said.

Both Caulfield and Hardcastle indicated they believe that there are limited legal risks when it comes to mandating proof of vaccination. Hardcastle said, generally, the main legal concern comes from people who can’t be vaccinated due to medical conditions.

“Businesses’ main obligations are under human rights law and not to discriminate against people with health conditions,” Hardcastle said.

While businesses are not to discriminate against those who medically cannot be vaccinated, Hardcastle suggested that same principle does not apply to those who simply choose not to get the jab.

Privacy policies could also be an area where a legal challenge could unfold but Hardcastle said she believes that would be unlikely.

“Businesses and municipalities already have privacy policies in place and policies for the collection of information,” she said.

“In this case, as long as they ensure they are following privacy law requirements in terms of collecting this information and whether they store it, the legal risk is also very limited.”

Caulfield and Hardcastle both pointed out that businesses have already taken steps to accommodate those who cannot get vaccinated, by offering services like curbside pickup which are now commonplace.

“There definitely are legal and ethical things to consider,” Caulfield said. “But are these clearly illegal or legally problematic to the point where the government should be warning businesses in their frequently asked question? No.”

Hardcastle said she believes the risk will only get smaller as proof of vaccination becomes more commonplace.

“I think anybody worries to be the first one or second one to implement these kinds of rules,” she said. “But as it becomes more and more commonplace, I think there’s more comfort in doing that and that legal risk seems even smaller.”

The Lethbridge Chamber of Commerce is hoping to hear from local businesses on the subject.

A survey was launched on Wednesday for business owners and operators.

“It was initiated by some of our members being concerned over what British Columbia decided to do as a province,” said Lethbridge Chamber of Commerce CEO Cyndi Vos. “So we thought we’d be on the proactive side of things.”

British Columbia announced Monday that it will require proof of vaccination for people attending certain social and recreational events.

Less than 24 hours after the survey was launched, Vos said the Chamber of Commerce already had close to 300 responses. At that point, about 75 per cent of responses were against requiring proof of vaccination.

“What we’re doing at this point is not making a statement, not making a stance, we’re simply gathering intelligence,” she said.

Despite the Alberta’s current stance, Vos said she recognizes that things can quickly change. Instead of responding to issues, she wants to solve them and be ready to have educated discussions based on what business owners are saying.

“Business right now is just getting back into the groove of being in business and they just don’t want hurdles,” said Vos. “They want accurate information for the safety of their business, for the safety of their employees and their patrons.”

The survey is open until next week and Vos encourages Lethbridge business owners to take part.

“It isn’t just a simple ‘yes’ or ‘no.’ Please tell us your pressure points so we can help identify solutions.”