THE Manitoba Human Rights Commission is warning the province and businesses to be careful about giving privileges to people with COVID-19 vaccinations, as tribunals could rule immunization cards and lottery incentives to be discriminatory.
"Not everyone has equitable access to vaccine, and you should think about that when designing those kinds of programs," said Karen Sharma, the commission’s acting executive director.
On Tuesday, the province launched a COVID-19 immunization card, which would allow fully vaccinated Manitobans to skip interprovincial quarantine requirements and be able to visit relatives in personal care homes. On Wednesday, the Pallister government promised $2 million in lottery prizes and scholarships for fully vaccinated Manitobans.
A day later, Sharma’s organization released a statement that says requiring proof of vaccination could result in discrimination on five legally protected grounds: disability, religion, political belief, poverty and age.
"The devil is in the details," Sharma said. "It really is about the thoughtfulness around how program design will address barriers to access, for code-protected groups."
It means businesses, public bodies and service providers need scientific evidence that requiring vaccination will significantly limit health risks.
They also must show they’ve made reasonable accommodation to include people who cannot get a vaccine for various reasons.
Arthur Schafer, a University of Manitoba bioethicist, said those principles have guided how courts balance restrictions on freedoms.
"A month or two down the road, say you want to go to a Blue Bomber game, and they require a vaccine certificate, or a restaurant does, or your local gym," said Schafer, who served as an adviser to the federal government on vaccine passports this spring,
"The courts could say they do limit your liberty, but the goal is public health."
Schafer said perhaps requiring a recent negative COVID-19 test result would resolve the issue. Generally, the onus is on businesses to offer accommodations, as long as they’re not excessively costly.
Similarly, Schafer said the province could theoretically modify its immunization card so that people who cannot get a COVID-19 vaccination show up as exempt with a valid medical reason. For example, someone who received an organ transplant and is on immunosuppressant drugs might not have been recommended for COVID-19 vaccines at first, though provinces included this group as more research emerged.
"We should try to reduce, as much as possible, undue hardship," he said.
The commission warns that offering a perk only to people who are vaccinated could lead to a finding of discrimination against someone who refuses a vaccine, such as for religious reasons or even cultural mistrust in accessing health care.
Sharma said the lottery incentive still lacks details, but she warned generally that it might be deemed a discriminatory benefit.
"In our understanding, a lottery program or any other kind of incentive… would constitute a benefit, a good, a program or a service under our human rights code," she said.
Schafer said the province, and even First Nations that offer prizes, might successfully argue the incentives effectively reduce the spread of a deadly virus and are acceptable.
Similarly, the commission’s guidance says any restrictions on employment related to vaccines must be grounded in scientific proof, with the company able to show that those restrictions significantly offer more safety.
The statement notes that what’s required of health-care staff might not fly in other settings.
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Sharma said the commission is especially concerned about people who cannot access photo identification.
The template of Manitoba’s COVID-19 immunization card does not include a photo, and neither do Manitoba Health cards. If someone wants to verify the cardholder is the person named on the card, that could mean they’re asked to provide a driver’s licence or other proof, which is harder for poor people to access.
"Imposing an identification requirement as a condition of accessing services may give rise to barriers to equity," she said.
Sharma said her staff is receiving an onslaught of questions about vaccines and incentives.
Schafer said the province’s immunization card and lottery scheme are bound to be subject to complaints and he expects legal cases to be launched once employers and businesses offer preferential treatment.
Legal precedent in flu vaccinations
University of Manitoba bioethicist Arthur Schafer said the commission’s Thursday statement echoes the principles that have guided legal cases since a 1986 Supreme Court ruling known as the Oakes case.
That case concluded that someone’s rights can only be restricted based on a "pressing and substantial" goal that can be "demonstrably justified in a free and democratic society."
Generally, hospitals and personal care homes require flu vaccinations for staff, but have worked out accommodations for people who don’t get immunized, such as assigning them to fewer frontline tasks.
But tribunals in years past have also ruled that branding unvaccinated hospital staff with a special badge, or forcing them to wear surgical masks during flu season, is not permissible.