Nova Scotia

A proof-of-vaccination requirement is coming. A lawyer explains the ins and outs

Does the public have the right to ask a business for the vaccination status of an employee, and is it even possible for employers to mandate vaccinations for staff? A lawyer spoke with CBC Radio's Information Morning to try to shed some light on this situation.

'They're making a choice, and there's definitely different consequences for the choice they make'

Wayne MacKay is a professor emeritus of law at Dalhousie. He talked about some of the issues raised by the province's proof of vaccine require for non-essential services. (Nick Pearce)

Nova Scotia's mask mandate ends Sept. 15.

On Oct. 4, Nova Scotia will require proof of vaccination for non-essential services.

Some locations requiring proof of vaccination will be gyms, bars, restaurants, theatres, sporting events and concerts.

But what does it mean in legal terms? Does a person have the right to ask a business whether staff is double vaccinated?

Wayne MacKay is a professor emeritus of law at the Dalhousie Schulich School of Law.

To answer questions on what this means for Nova Scotians and talk out some scenarios, MacKay spoke with host Portia Clark on CBC Radio's Information Morning Monday.

This discussion has been edited for length and clarity.

Nova Scotians will soon need to show proof of vaccination to do a lot of non-essential activities. Information Morning's legal columnist Wayne MacKay looks at some of the issues raised by the province's vaccine mandate. 7:48

One of the arguments we hear from people who are vaccine hesitant is that forcing them to get vaccinated is a violation of their freedom of choice. Does that hold up as a legal argument?

Basically, the answer is no, in that it's usually put forward in the way that they're suggesting they don't have a choice whether or not to get vaccinated, and that's not actually the case.

What it is, is that there are consequences if you do not get vaccinated.

The effect after October 4th, and the proof of vaccine arrangements come into play, is that you will not be able to get to certain events like restaurants or larger events or gyms in those kind of things.

They are putting limits on their choices, but by their own decision.

They're not being forced, for example, to get an injection and they're not being forced to take one side or the other. They're making a choice, and there's definitely different consequences for the choice they make.

I suppose because it's not a workplace policy, it's not like your income will be affected because this applies to non-essential services, Wayne?

That's a really important point as well, that it is non-essential services.

If it were essential services, that raises much more difficult questions and it would be much harder to justify that kind of restriction.

But we are talking about not minor things, but going to restaurants, going to gyms, going to sporting events, that kind of thing, so that is very important.

What about the argument that it's an invasion of privacy to ask for proof of vaccination because that's personal information?

Well, it is personal information and particularly personal health information.

And so the sort of starting position under various legislation, the Freedom of Information and Protection of Privacy Act and the PIPEDA [Personal Information Protection and Electronic Documents Act] at the business level, but that's just the first point.

Then there are exceptions.

That's why at the end of the day, it is an invasion, but it's one that can be justified based on the legitimate concerns about health and the protection of the health of most of your citizens or all of your citizens.

So yes, it's initially a limitation, but it's not at the end of the day, a violation.

There's other kinds of exceptions, for example, administration of justice or if, for example, in some cases, if they were trying to reveal information about child abuse, those kind of things, but health protection is a classic exemption for those kinds of rules.

If I'm asking a repair technician to show proof that they're double vaccinated before they cross the threshold into my home, is that allowed?

I think it is allowed. First of all, in terms of who can enter your home, there was not a lot of restrictions legally.

But again, going back to the sort of nature of privacy, that's a private thing. But the person that you ask is not required to [answer and] there again will be consequences. If they don't answer, presumably you wouldn't let them in or you ask for a different repairman or you go for a different company or whatever.

But again, you're not actually requiring them to answer, it's very important that you have a legitimate reason to be asking for that personal information. And in this case, you do. They're entering your home. There's some issues of COVID that may arise, and it's your right, in my opinion, to ask that person.

It's their right to either answer or not, but then they have to accept the consequences that go with that. The short answer is yes, you can do that and that there's really nothing wrong with that. 

Say you're going out for a service, Wayne, getting a hair appointment for example. Can you request that the person be fully vaccinated, who will give you a haircut? Doesn't that force the employer to ask employees for that personal information so they decide who will be your hairdresser?

Well, the answer is yes, you can. But that then gets into a bit more complicated area because if you're asking and people are frequently asking whether or not the person serving you is double vaccinated, then the employer will certainly be pressured to mandate vaccinations for their employees.

If somebody does not want to be vaccinated, then they may be putting their employment or at least the particular form of their employment in jeopardy.

But again, those are the consequences that can come as long as it's legitimate.

The kind of employment is extremely important. If you're a health worker, not hairdressers, a fairly good example. I think of one [employment type] where there's close personal contact.

If you were somebody working in a back room with no public contact, it would be quite unreasonable, I think for an employer to require vaccination

Information floating around everywhere about COVID-19 on the internet, could there be legal repercussions for people who spread misinformation that actually can be connected to someone getting sick and dying? 

Well, I think again, the answer is yes, that there can be.  

First of all, and the first point, there is a lot of misinformation out there, and I think part of the really heated debate that's going on right now around vaccines is that many people are operating from different kinds of different types of information, some more reliable than others.

If you are first of all, as a website or something making that information available, there may be some legal consequences, such as negligence or if you're spreading that information, that too may produce a claim in negligence because what you're doing arguably is putting your fellow citizens or your neighbours, as they talk about it in law, at risk.

[You are] doing it in a way that you should reasonably know what is going to happen, and that's the next point. It's only really a problem in most cases if you're somewhat aware that the information is false.

That's the real problem. 

Most people who are basing their comments and their positions on information are absolutely convinced it's right, and in fact, going to websites where they get information from sort of like-minded people, they're convinced their version of reality is correct.

If that's the case, it's hard to have real direct legal consequences.

with files from CBC Radio's Information Morning