As the first COVID-19 vaccine slowly makes its way into arms across Canada, debate has begun over the thorny question of mandatory immunization for employees in certain fields.
Provincial governments are encouraging Canadians to roll up their sleeves when vaccine doses become more widely available but have said they do not intend to make immunization compulsory.
However, given devastating COVID-19 workplace outbreaks, some employers have begun considering whether to eventually require vaccination and how to handle employees who decide not to get their shots.
The issue of mandatory immunization cuts through myriad sensitive areas, including workers’ personal privacy, human rights and religious beliefs. On the other side, employers could argue vaccination is a job requirement so workers don’t transmit the disease to their colleagues and, in the case of staff in hospitals and nursing homes, vulnerable patients.
The law on the issue is not clear-cut, and because the situation is still fluid, there is uncertainty around how the courts would treat vaccine requirements. Canada approved Pfizer-BioNTech’s COVID-19 vaccine last week.
“Generally employers cannot require anyone to be vaccinated,” said Tamara Ramusovic, an employment lawyer in Vancouver. The law recognizes the need to balance the competing interests of public safety and personal privacy, she said.
How employers should strike that balance, under the law, will depend on the facts and evidence, she said. What are the risks of transmission in a particular workplace? What is the evidence of the safety and efficacy of a vaccine?
Requiring COVID-19 immunization as a condition of employment is a long way off, not least because scientists still do not know the vaccine’s effectiveness at stopping asymptomatic spread of the virus, said Allison McGeer, director of the infectious-diseases epidemiology research unit at Toronto’s Mount Sinai Hospital.
“We’ll just have to wait and see how the evidence evolves about how important vaccination is at protecting the people around you,” she said.
If it turns out that the vaccine does prevent COVID-19 transmission, Toronto’s University Health Network would weigh requiring inoculations for staff, likely through negotiations with its unions, spokeswoman Gillian Howard said.
“This is a contagious disease and if the vaccines prove out to have the efficacy that has been seen in the trials, it would be considered,” she said in an e-mail.
Provincial rules require Ontario hospital workers to prove they are immune to several infectious diseases, including measles, mumps, rubella and chickenpox. In Alberta, front-line health care workers must be immunized against rubella.
Some Ontario long-term care operators worry uptake of the COVID-19 vaccine will be low among staff, especially in areas that have not had large outbreaks, and are hoping the provincial government will eventually make immunization mandatory in the sector, said Lisa Levin, chief executive officer of AdvantAge Ontario, which represents municipal and not-for-profit nursing homes.
“I have seen the devastation that can happen in a home when people get COVID-19, so it would seem to me that it should be considered,” she said.
Experience with the flu shot suggests that many health care workers will not get immunized for COVID-19. Flu vaccine uptake among health care workers lags the national goal of 80 per cent, although it is higher than coverage among the general public.
While many health care workers’ unions are encouraging their members to get COVID-19 shots, they strongly oppose mandatory vaccination policies.
“We’ll wade into those waters if we need to,” said Vicki McKenna, president of the Ontario Nurses’ Association. “It’s a basic right, that people have the right to refuse.”
The only case law in the area thus far in Canada involves limited examples of flu vaccine requirements for health care workers.
Nurses’ unions have pushed back against vaccinate-or-mask rules for the flu shot. In 2018, an Ontario arbitrator ruled against such a policy, finding there was not enough evidence supporting either the use of masks or the flu vaccine.
In 2013, a British Columbia arbitrator upheld a vaccinate-or-mask policy as a reasonable limit on nurses’ privacy rights. But one year ago, the B.C. Nurses’ Union struck a deal with health employers to allow nurses to use their professional judgment, except in cases of flu outbreaks.
Among lawyers, there is wide agreement that those who refuse to be vaccinated against COVID-19 could face consequences.
Vicki Giles, an employment lawyer in Edmonton, said mandatory immunization policies will be possible – but such policies do not mean employees who refuse will be fired.
“What is ‘mandatory’ is the requirement to have the vaccination in order to work with the vulnerable population,” she said in an e-mail.
And a similar “mandatory” policy may be put in place in workplaces such as meat-packing plants because the employer would have an obligation under health and safety law to keep other workers safe, she said.
Those who refuse to be vaccinated could face consequences such as being put on a leave of absence without pay, or being moved to other work, she said.
During flu outbreaks, some long-term care homes move unvaccinated staff to different floors or place them on unpaid leave.
Courts are unlikely to accept employers’ demands that their workers be immunized because it is a “extreme intrusion” on their bodily integrity, said Richard Press, a Vancouver employment lawyer. But the time is coming when “most employers are going to have to consider at least asking employees if they have been vaccinated.”
As with the immunizations themselves, employees probably could not be required to disclose, Mr. Press said. But employers could impose consequences on those who do not. The employees would almost certainly be treated as if they had not been vaccinated. They might then be subject to being placed on leave or, if possible, moved to another location, required to wear extra personal protective equipment, or to work remotely.
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