WHAT AM I MISSING?
We act as though seeking or divulging one’s vaccine status is simple and no big deal. I feel like it’s very complicated actually, more like a legal and ethical minefield. Moreover, I can't imagine any ethicist or legal expert out there seeing it any differently; which makes me wonder who is being consulted about all of this — and I’m left to wonder because there's no public debate about any of it. That seems quite bizarre. Those of us able to remember the ‘80s and ‘90s and recall the HIV/AIDS pandemic should be so hypersensitive to all of this and eager to, at the very least, have a vigorous and transparent public dialogue. And yet that’s not what I’m seeing.
My instinct about people’s vaccine status is that it’s private information. Here in Canada there are various personal health information protection acts in place in different regions that encompass any details relating to a person’s physical or mental health. As such, when anyone asks another to respond to inquiries related to their vaccine status they’re demanding a disclosure that falls directly under such legal privacy protections, binding the receiver of that information both legally and ethically. So, to my mind, asking for such details in the first place is the same as insisting this information is not so protected. Demanding disclosure is the same as rejecting all of the many perfectly valid and legally protected reasons one may not wish to disclose. How is it otherwise? And how does the rest of us casually offing up our status everywhere and anywhere not make the situation more difficult for those who cannot or don't wish to?
It’s true that employers are obliged to protect employees from workplace hazards; and one could argue that COVID-19 is a hazard employers need to protect their employees from, thereby justifying employee vaccination requirements and warranting the implementation of vaccine passports for employees and customers. However, not only does getting vaccinated not protect against infection or transmission of the virus (see links below for recent guidelines, studies, and real world news reports from the WHO, CDC, and others), making the whole argument moot. If protection was robust and lasting and transmission impossible this would still only be one dimension within a far bigger issue.
Mostly, if you’re asking the question, how are you not declaring to the world that you don’t believe there's a valid reason for protecting one’s private health information? How are you not saying that a history of medical abuses, the ethical imperative for broad privacy protections, legitimate fears about serious discrimination, familial or cultural obligations, and more are all invalid or less important than a vaccination (which shows no sign of eliminating infection or transmission)? I think that’s the position one is taking, whether they believe so or not.
Further, if you’re an employer and requiring employees to disclose you’re also committing to never making that private information public. But if you run a business like a cafe or a university and someone asks if all your employees are vaccinated or you volunteer that on your website you’re not just invalidating all of the above but also violating privacy protections. Or, that’s how I see it and I don’t know how you get around this.
And when I go looking for expert advice I find this opinion of mine is corroborated by bioethicists and legal professionals around the country. For instance, Dr. Andria Bianchi (bioethicist and assistant professor in the Dalla Lana School of Public Health at University of Toronto) wrote a recent piece about this and along similar lines. Her stance on vaccine disclosure is that:
Ultimately, the potential consequences associated with asking people to disclose their vaccine status are real. And since we do not necessarily need to have this personal information to keep ourselves safe, we ought to reconsider asking about it during our regular public interactions. Why not just follow public health protocols and provide people with an opportunity to make informed decisions about the vaccine and to keep their PHI [personal health information] private? This approach would likely allow each of us to live more comfortably and safely together.
British Columbia’s Office of the Human Rights Commissioner has also published on this topic. In an updated report from October of 2021, titled A human rights approach to proof of vaccination during the COVID-19 pandemic, they determined that:
Vaccination status policies can be implemented in limited circumstances — but only if other less intrusive means of preventing COVID-19 transmission are inadequate for the setting and if due consideration is given to the human rights of everyone involved. This applies to vaccination requirements introduced by government through an order of the Provincial Health Officer, as well as to the vaccination status policies of employers, landlords and service providers (aside from the requirements mandated by existing orders).
So, to my reading then, this human rights-informed approach tells us that allowing employees to work from home, say, would be a least invasive option. If that was not possible, providing employees with N95 masks, enhancing workplace ventilation, mandating distancing measures, and every other precaution would all be less intrusive and should be implemented before requiring disclosure of any private health information.
Do you know anywhere that either piece of expert advice is being followed? I don't.
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RESOURCES
WHO - The Pfizer BioNTech (BNT162b2) COVID-19 vaccine: What you need to know
“Does it prevent infection and transmission? There is currently no substantive data are available related to impact of Pfizer BioNTech vaccine on transmission or viral shedding.”
WHO - The Moderna COVID-19 (mRNA-1273) vaccine: What you need to know
“Does it prevent infection and transmission? We do not know whether the vaccine will prevent infection and protect against onward transmission. Immunity persists for several months, but the full duration is not yet known. These important questions are being studied.”
CDC - Outbreak of SARS-CoV-2 infections, Including COVID-19 vaccine breakthrough infections
August 6, 2021
“In July 2021, following multiple large public events in a Barnstable County, Massachusetts, town, 469 COVID-19 cases were identified among Massachusetts residents who had traveled to the town during July 3–17; 346 (74%) occurred in fully vaccinated persons. Testing identified the Delta variant in 90% of specimens from 133 patients. Cycle threshold values were similar among specimens from patients who were fully vaccinated and those who were not.”
Riemersma, et al. - Shedding of Infectious SARS-CoV-2 Despite Vaccination
August 24, 2021
“We observed low Ct values (<25) [meaning the virus was in high volume and easy to find] in 212 of 310 fully vaccinated (68%) and 246 of 389 (63%) unvaccinated individuals. Testing a subset of low-Ct samples revealed infectious SARS-CoV-2 in 15 of 17 specimens (88%) from unvaccinated individuals and 37 of 39 (95%) from vaccinated people.”
“COVID-free” outdoor music festival results in largest superspreader event in the Netherlands
July 14, 2021
“The festival was a ‘test for entry’ event, meaning visitors were admitted if they could show a QR code which showed they had either been vaccinated, had a negative coronavirus test or had recently had the disease.”
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