Fairness Principles for Public Service Providers Regarding the Use of COVID-19 Vaccine Certification - Conseil canadien des ombudsmans ...
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Fairness Principles for
MAY 2021
Public Service Providers
Regarding the Use
of COVID-19 Vaccine
Certification
Canadian Council of Conseil canadien des
Parliamentary Ombudsman ombudsmans parlementaires
These guidelines are intended for: 3 Provincial/territorial governments 3 Other public bodies under the jurisdiction of the Ombudsman These guidelines are not intended for: 2 Federal government 2 Indigenous governments 2 International travel procedures 2 Private sector These guidelines are directed to public organizations and are not intended to replace public health guidance. Canadian Council of Conseil canadien des Parliamentary Ombudsman ombudsmans parlementaires
Governments around the world are These administrative fairness principles
considering, or are currently in the process have been developed by the Canadian
of implementing, vaccine passports Council of Parliamentary Ombudsman
or certificates1 to allow individuals to (CCPO). The CCPO is comprised of
prove vaccination against COVID-19 provincial and territorial Ombudsman,
and gain access to certain services. whose mandate is to ensure people are
Should municipal or provincial/territorial treated fairly in the delivery of public
governments in Canada decide to services. By following these fairness
implement vaccine certificates or passports principles, those who deliver public
to allow access to public services, services are more likely to achieve fair
the following principles are offered to administration in the use of vaccine
help guide public sector organizations certification should it be introduced
to proactively ensure fairness in their in Canada.
application. As a basic premise, and in
keeping with the principles of administrative
fairness, there should be no oppressive
or unreasonable barriers to accessing
services offered by provincial/territorial
and municipal governments based on a
person’s vaccination status; government
and other public services must be
accessible to all.
1
Vaccine passport is the common term used to describe the process for proving vaccination status and confirming immunity against
communicable diseases such as COVID-19. Other names for such certification may be used in different jurisdictions, such as vaccination
certificate, immunity passport, or digital proof of vaccination.
2Fairness Principles for Public Service Providers Regarding the Use of COVID-19 Vaccine Certification
1. If vaccine certificates or passports 2. Government policy regarding the
are implemented in Canadian use of vaccination certificates
provinces and territories, or passports must be evidence-
governments must provide clear informed and subject to regular
direction on their application and review.
use to all entities providing services
to the public, either via legislation or
Because the scientific and medical
publicly available policy.
evidence for each COVID-19
vaccine continues to evolve, and the
Decisions to restrict an individual’s duration of protective immunity and
access2 to services based on vaccine efficacy remains uncertain
vaccination status must be made fairly at this time, public organizations
and consistently by public service must make decisions regarding the
providers. As such, if an individual’s ongoing requirement for vaccination
vaccination status is considered status based on current advice from
relevant to the receipt of public appropriate public health officials and
services, it is critical that government the associated scientific data. There
provide clear guidance to decision should be a continuous assessment of
makers through legislation or policy whether there continues to be risk of
in order to prevent arbitrary, unlawful, transmission by those who have been
unjust, or unreasonable decisions from vaccinated – and if so, an explanation
being made. The criteria for obtaining of the rationale for continued use of
such vaccine certification must be such vaccine certificates or passports.
clearly established in such legislation Until further information is available
or policy, communicated to the public, and public health restrictions are lifted
evidence-based, and subject to review or loosened, public organizations
or appeal. Provincial or territorial should consider whether they can
governments may create this legal continue to provide adequate services
or policy framework for the use of using the same methods employed
vaccine certificates or passports, but, throughout the pandemic (such as
in the interests of policy consistency, through telephone and online delivery)
any such policy should apply to the with no disruption in service delivery.
broader public sector.
2
The term “access” used throughout this document refers specifically to in-person access to public services delivered by municipal, provincial
and territorial governments in Canada. Remote access to these services should not be affected in any way by a person’s COVID-19
vaccination status.
3Fairness Principles for Public Service Providers Regarding the Use of COVID-19 Vaccine Certification
to public health. In addition, if tests
3. Determining access to public for COVID-19 will be required to gain
services based on vaccination status in-person access to a public service,
cannot be contrary to the pre-existing these tests must be free, easily
laws of the relevant jurisdiction. accessible and available to all those
who may require them in the pursuit of
receiving such service.
The unprecedented global pandemic
cannot allow the lessening of legal
frameworks in place that serve to 5. Requirements to disclose vaccination
protect individuals, such as privacy status in order to access public
and human rights law. These laws services must be proportionate to the
must be considered when deciding type of service being provided, the
whether to require proof of vaccination associated risk to individuals and the
for access to a public service, and risk posed to public health.
adequate consultation with relevant
stakeholders and regulators should be
The decision to require vaccination
conducted in each jurisdiction.
status prior to receiving a public
service must be proportionate to
4. If introduced, vaccine certification the nature of the service being
must be made available in a way provided and the risk of transmission
that is equitable and accessible to of the COVID-19 virus. Similarly,
everyone. where restrictions on an individual’s
liberty have been imposed based
on their vaccination status (such
While digital technology such as smart
as self-isolation requirements
phones may be able to provide some
for inmates upon admission to a
individuals with immediate access
correctional centre), these must also
to their personal health information
be proportionate to the level of risk
(including their immunization
involved and reviewed regularly to
records), this information must be
determine whether or not they continue
made accessible in multiple ways.
to be necessary, as they could be
This means ensuring that there are
viewed as arbitrary and unfair.
alternative methods, such as paper
records, for individuals to prove they
have been fully vaccinated against
COVID-19 and pose a reduced risk
4Fairness Principles for Public Service Providers Regarding the Use of COVID-19 Vaccine Certification
standard policy. This guidance
6. Accommodations must be made for should ideally include information
those who have not received the about the factors to consider when
vaccine. making accommodations, any limits
to their discretion in determining such
exceptions to the rule, and contact
There are many individuals who may
information for a resource within the
not be able to receive the COVID-19
organization where front-line staff can
vaccine (including as a result of the
obtain further assistance or advice.
phased roll-out) and there are also
those who will choose not to receive
the vaccine. In these circumstances, 8. Decisions about restricting access
public services should not be restricted to a service based on a person’s
on the basis of vaccination status. vaccination status must be done in a
Instead, reasonable accommodations transparent, procedurally fair manner
must be made for those individuals and be clearly communicated to the
to receive services, and alternative affected person in an accessible way.
methods of service delivery should be
available to them.
Individuals who are denied service or
have limited access based on their
7. Public organizations should provide vaccination status must have the ability
clear guidance to their staff to assist to communicate with a representative
them in making and communicating of the service provider to discuss
decisions to limit access to services the matter and communicate their
based on vaccination status. concerns. To facilitate this, adequate
notice about the requirement to
disclose vaccination status to access
Decisions about limiting access
the service must be provided to the
to public services can be complex
individual in advance. This notice
and challenging for front-line
should contain:
staff, particularly in the rapidly
changing situation of the pandemic. • clear reasons for the requirement
Organizations should provide to disclose vaccination status;
proper guidance to their staff to • the criteria used to make
help them exercise discretion fairly the decision that led to the
and allow for some flexibility and requirement;
accommodations to be made to
5Fairness Principles for Public Service Providers Regarding the Use of COVID-19 Vaccine Certification
• the consequences for declining clear and meaningful reasons to the
to provide information about affected individual.
vaccination status;
• information about how to access 10. If vaccine certificates or passports
the service without disclosing are implemented, government must
vaccination status; and ensure that independent oversight is
• the name or title of a contact in place.
person at the organization who can
answer questions and address any
Independent oversight of government
concerns about the requirement.
is an essential aspect of Canada’s
In addition, general policy regarding democratic system. Particularly in
any requirements to prove vaccination times of significant and constant
status in order to access a service change, and when governments
should be made publicly available on are taking such extraordinary steps
the organization’s website. to protect the health of individuals,
oversight of government decisions is
needed to ensure that government
9. When decisions are made to deny
is accountable to the public it
or limit public services to those who
serves. Furthermore, should vaccine
may not be able to prove vaccination
certification be introduced in Canada,
status, they must be informed of their
municipal, provincial and territorial
right to appeal and be provided with
governments would benefit from
information about the appeal process
proactive engagement with oversight
available.
bodies such as the Ombudsman. The
members of the CCPO welcome the
Decisions to limit or restrict services opportunity to consult with government
can have a significant negative impact to proactively identify fairness issues
on individuals. As such, procedural that may arise should vaccine
fairness also requires that those who certification be introduced in Canadian
suffer such an impact be informed provincial/territorial jurisdictions.
of their right to appeal to the service Governments may also reference, and
provider for an exception to the proof find useful, the Fairness by Design
of vaccination requirement based on self-assessment guide created by
their individual circumstances. Any the CCPO for public organizations to
decision made on appeal must provide proactively evaluate the fairness of
their programs and policies.
6Canadian Council of Conseil canadien des Parliamentary Ombudsman ombudsmans parlementaires
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