Mandatory vaccination for healthcare workers could survive Charter challenge: medical journal report

With the arrival of approved vaccines for COVID-19, authors of a recent paper in the Canadian Medical Association Journal call on provincial and territorial governments to set clear rules that would apply across all healthcare settings. They add these rules would likely survive a Charter challenge.

“In our view, provincial governments should not leave the decision of whether to require a [COVID-19] vaccine to the variability of choices made by different employers, but should set clear rules for all public and private health care settings,” write authors Colleen Flood, Bryan Thomas, and Dr. Kumanan Wilson MD.

“Although a mandate that health care workers must be vaccinated, or else stay home without pay, could be the subject of a Charter challenge, governments should be able to successfully defend such a challenge,” the authors conclude. “To be defensible, however, any vaccination mandate must have exemptions for those who cannot be vaccinated or have bona fide religious or conscience objections.”

Flood, a law professor and research chair of health and law at the University of Ottawa, says, “the first thing I want to make clear is that COVID-19 is not influenza, it’s much more serious.” She refers to some successful challenges made by nurses in Ontario and B.C. to mandatory vaccination policies at their workplaces.

Reached in New Zealand, where she has been on sabbatical, Flood notes that many of the legal disputes around healthcare workers and vaccinations involve the influenza vaccine. Most come from the world of labour disputes and negotiations and labour arbitrators’ rulings in cases involving unionized workers.

“These don’t necessarily limit what Canadian governments can do in respect to COVID-19,” Flood says. For example, the B.C. government and nurses reached an agreement in December 2019, leaving it to individual nurses to have the influenza vaccine. “But that does not mean that going forward governments, hospitals or long-term care homes will be similarly limited in requiring COVID-19 vaccines.”

Flood points out that compared with influenza strains, COVID-19 is more transmissible and has a higher fatality rate. She also says that while some are concerned about taking a vaccine developed in less than a year, different influenza vaccines are administered every year and need “tweaking.”

Flood adds that “it matters” whether mandatory COVID-19 policies would be imposed by employers (hospitals, long-term care homes) or governments directly. The Charter would not apply to a privately financed long-term care facility acting on its own to require health care worker vaccinations. However, employer mandates could be contested via labour law challenges.

Governments are more open to Charter challenges, she says, for example, under s. 7, which protects an individual’s right to life, liberty or security. Nongovernmental agencies could also be subject to the Charter if they are acting on government policy directives, Flood says.

However, the CMAJ article says that if a provincial government required all health care workers to be vaccinated and a private facility wanted to enforce this directive, a Charter challenge is possible but “would be unlikely” to succeed.

“There is scope within the Charter for governments to defend a mandatory vaccination policy for health care workers, provided appropriate exemptions are made because of pre-existing health conditions and for bona fide religious and conscientious objections,” the article states. Scientific skepticism about vaccination is unlikely to receive such accommodation.

To be clear, Flood says, any policy of “mandatory” vaccination would likely “not involve holding someone down and forcing them to get the vaccine.” A more likely scenario would be an economic penalty, such as get inoculated or stay home on unpaid leave. Such an order would not constitute forced medical treatment and thus would not be contrary to s. 7(b) of the Charter, despite inflicting economic hardship on those who refuse.

“The word mandatory kind of sets people off, you know, because you envisage someone being held down and forcibly injected against their will,” she says. “What we mean, in our paper, is that there would be consequences for somebody who chose not to be vaccinated.”

The Charter has not historically protected economic interests and the “right to work,” but even if challengers were successful in proving a breach to the Charter had occurred, Flood says they would still have to establish that the deprivation was not following the principles of “fundamental justice.” As well, governments would have the opportunity to defend the mandate in the context of s. 1 of the Charter. This section is known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an individual's Charter rights under certain circumstances.

Flood acknowledges that there are many who say the best way to convince people to get vaccinated is through education, persuading them that it is safe and effective. “Well, in the middle of a pandemic, I don’t think you have time to do that,” she says. “And the lives of actual, real people are counting on the vaccines.” She says having as many people as possible who can take the vaccine get vaccinated is important to protect those who can’t for health or religious reasons. “We’re relying on herd immunity for them.”

She says at this point, given the slow distribution of even the limited vaccines Canada is getting, it might not be politically expedient to have a mandatory inoculation policy since the chances of getting the vaccine are low. But at the very least, Flood argues, governments should be obtaining data on how many healthcare workers are refusing to get vaccinated.

According to an Angus Reid Poll released January 11, only three in five or 60 per cent of Canadians say they will get the vaccine as soon as they can. A survey of about 30 long-term care facilities and retirement homes in the southwestern Ontario county of Windsor-Essex put 21 per cent of front-line healthcare workers in the “no” column.

“There is definitely hesitancy out there,” Flood says.

An important question in all this, Flood says, is how much Personal Protective Equipment alone would sufficiently protect health care workers and their patients. With challenges to the influenza vaccine, arguments were successfully made that wearing PPE and other measures short of vaccination would be enough. However, Flood says any arbitrator or court would have to recognize that COVID-19 is far more easily transmissible and leads to higher mortality rates.

Whether a health care worker could successfully contest a mandate for vaccination by arguing that PPE alone is sufficient will depend upon evidence that is still emerging, she says, and the physical setting and ability for social distancing. Another relevant factor may be evidence on the expense and difficulty of procuring PPE and whether it is properly used to reduce the risk of acquiring COVID-19 infection for both health care workers and their patients.

Evidence on how well a vaccine reduces the transmission of the disease, not just protecting the one injected, will also be important.

The CMAJ artice states that the evidence on this is somewhat uncertain "Randomized controlled trials of the [Covid-19] vaccines have not yet yielded full results on the extent to which [these] vaccines prevent transmission of the virus to others, but the expectation is that there will be at least some degree of reduced infectivity.” If further trials provide data suggesting a reduction in infectivity, the argument favouring vaccination mandates will be considerably bolstered, Flood says.

Any government could also argue that vaccination of healthcare workers without clear evidence of reduced viral transmission is justifiable, given the severity of the COVID-19 pandemic. Moreover, a vaccination mandate could also be justified, at least until the pandemic is well under control, because it is essential to maximize the health care workforce available to treat patients with COVID-19.

Flood says the federal government should support a vaccine surveillance system across Canada to better understand the efficacy of vaccines in the real world, case severity and adverse events.