CANADA
Mandatory vaccination for health care workers: an analysis of law and policy
An effective vaccine provided to all health care workers in Canada will protect both the health workforce and patients, reducing the overall burden of coronavirus disease 2019 on services and ensuring adequate personnel to minister to people’s health needs through the pandemic.
Provincial governments should put in place rules for mandatory vaccination of health care workers that cut across all public and private settings, and should not leave this to the discretion of individual employers.
If individual employers were to require vaccination among their staff, the legality of these mandates would likely be determined via labour law that considers the “reasonableness” of the employer’s directive, as is evident from case law related to mandatory influenza vaccination.
Government mandates for the vaccination of health care workers may be challenged under the Canadian Charter of Rights and Freedoms, but these challenges, on the extant evidence, likely will not succeed if provisions are made for those who cannot receive the vaccination because of underlying health issues and for those who object to vaccination on bona fide religious or conscientious objection grounds.
Challengers may argue that health care workers have the right to wear personal protective equipment (PPE) in lieu of receiving vaccination, which means that governments must support vaccine surveillance and keep abreast of emerging evidence of the effectiveness and safety of the various severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) vaccines relative to evidence of the effectiveness of PPE in reducing transmission of SARS-CoV-2.
With the approval of vaccines for severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), the vaccination of Canada’s health care workers who come in direct contact with patients is a top priority.1 The important question arises of whether governments, public health care organizations and private actors, such as the companies that own and administer long-term care facilities, should consider taking the controversial step of making SARS-CoV-2 vaccination mandatory, whether by direct regulation or under terms of employment. The rationale for taking such a step is that vaccination will protect individual health care workers, and the patients for whom they care, from acquiring SARS-CoV-2. Preventing coronavirus disease 2019 (COVID-19) in those who are vaccinated will also ensure that the health workforce does not become dangerously depleted. However, mandatory vaccination policies may be challenged. Historically, policies on mandatory influenza vaccination have been contested under labour law, and in theory might be challenged under human rights law and the Canadian Charter of Rights and Freedoms.2 We discuss legal precedents emerging from attempts to mandate influenza vaccines for health care workers and whether they translate to the context of the SARS-CoV-2 vaccination, and explain how both governments and individual employers (e.g., public hospitals or private long-term care homes) may legally justify SARS-CoV-2 vaccinations of health care workers.
Does case law on influenza vaccination apply to SARS-CoV-2 vaccination?
Much of the extant law relating to influenza vaccination for health care workers comes from labour arbitrator decisions (not courts) that resolve disputes between different employers (e.g., public hospitals) and health care workers’ unions. Agreements reached in the labour-law context do not limit choices by Canadian governments or employers with respect to SARS-CoV-2 vaccinations. For example, an agreement reached between the British Columbia government and nurses in December 2019, leaving it to individual nurses whether to have the influenza vaccination, does not mean that going forward, the British Columbia government, public hospitals or long-term care homes are similarly limited in requiring SARS-CoV-2 vaccinations. Moreover, law developed in the context of influenza vaccinations will not be applied indiscriminately to the COVID-19 context: law is adaptive to changing scientific evidence. An example of relevant evidence is that, compared with the various influenza strains, SARS-CoV-2 is both more transmissible and has a higher case fatality rate.3,4
The relatively short time frame of SARS-CoV-2 vaccine development (less than a year) is also relevant; for some this may heighten concerns about safety and effectiveness of the vaccines, yet it bears mentioning that different influenza vaccines are administered every year.5 As we write, it is also not clear whether emerging vaccines will prevent transmission of all SARS-CoV-2 strains or whether trial estimates will be borne out in nontrial settings. The evidence on safety, effectiveness, reduction in infectivity and duration of immunity for the different vaccines will evolve as vaccination programs roll out. All these factors will be considered when assessing legal issues. Because the evidence is limited regarding the extent to which SARS-CoV-2 vaccination programs prevent transmission, one question relevant to legal disputes is whether other measures, such as masking, could be sufficiently effective and obviate the need to mandate vaccination.
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