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A health care worker leaves after finishing her shift for the day at the Eatonville Care Centre in Toronto on April 24, 2020.Nathan Denette/The Canadian Press

How can it be that during a pandemic that has killed more than 22,000 Canadians and sickened nearly a million, individuals who work directly with the most vulnerable populations are under no obligation to be vaccinated? That hospital staff, long-term care workers and other front-line personnel can choose to decline a safe and effective tool to protect their health and the health of their patients, and yet still show up to work as normal as if we aren’t in the midst of an ongoing global public health emergency?

It would be of less critical importance if Canada had already reached herd immunity, or if vaccines were 100 per cent effective in preventing illness, or if some long-term care homes weren’t forced into lockdown every time a staff member tests positive for COVID-19. But the overwhelming majority of Canadians have not even received one dose of vaccine, and they risk exposure to the virus if they happen to need medical care or hospitalization and the people treating them declined vaccination.

Recent real-world data compiled by the U.S. Centers for Disease Control and Prevention show that mRNA vaccines significantly reduce both symptomatic illness and infection, meaning vaccinated individuals are unlikely to transmit the virus.

Seniors in long-term care – many of whom have already endured a hellish year without family and amid catastrophic waves of illness and death – are periodically confined to their rooms when an unvaccinated staff member tests positive for COVID-19. It happened at a care home in Kelowna, B.C., in early March, where 35 per cent of staff were still unvaccinated. Ontario estimates that around 25 per cent of long-term care staff province wide still haven’t had their shots, which means new, not-yet-vaccinated short-stay residents risk exposure from staff, as do residents for whom vaccination might be less effective due to age.

There are genuinely good reasons why long-term care staff might have been hesitant to get the vaccines back in late December and early January.

They were some of the first people in Canada to be offered the vaccines, which they were told were safe by the same governments that, in Ontario and Quebec in particular, failed to supply them with the resources to protect themselves and their residents from the ravages of the virus.

But months later, the safety and efficacy of these vaccines have been demonstrated through real-world inoculation programs. Competent governments would have initiated campaigns to counter vaccine hesitancy months ago, in multiple languages, in anticipation of the inevitable concerns people would have about brand-new vaccines. But the stakes are too high to wait for healthcare and long-term care workers to gradually come around on their own now, as we enter the third wave. They need to be offered incentives to get the vaccine – paid time off, transportation to clinics, even bonuses or perks – but ultimately, a choice: vaccinate, or be put on unpaid leave.

Healthcare workers have been given similar ultimatums before, to varying effects, and with varying resolutions. An arbitrator ruled against a Sault Ste. Marie, Ont., hospital back in 2015 after it required staff to be vaccinated or wear a mask during the flu season, deeming it coercive and in violation of the nurses’ collective agreement. A similar decision was rendered in St. Peter’s Health System v. CUPE, Local 778, where management required staff to be vaccinated or stay home during a flu outbreak. Yet the arbitrator in British Columbia Nurses’ Union v. Health Sciences Association of British Columbia found management’s vaccinate-or-mask policy reasonable, as did an arbitrator in a Quebec case where a nurse in a long-term care home was placed on unpaid leave for two days during a flu outbreak for refusing a vaccine.

A provincial order requiring healthcare workers and long-term care staff to be vaccinated (with exceptions for those with certain medical conditions) or be placed on unpaid leave would absolutely be the subject of a Section 7 Charter challenge, on the grounds that it may violate an individual’s right to “life, liberty and security of the person.” But a court might find the infringement reasonable on account of the fact that we are in a global pandemic and battling a virus that is several times deadlier than the flu, and economic rights – which in this case would be a “right” to be paid for a certain job during a public health emergency – are generally not protected by Section 7 of the Charter anyway. A vaccinate-or-mask policy, which might be sufficient during a regular flu outbreak, simply isn’t enough for COVID-19, particularly since masks have proven to be far less effective in controlling outbreaks in congregate settings compared to vaccines.

The risk of this sort of vaccinate-or-stay-home choice is that provinces might lose desperately needed healthcare and long-term staff. But the risk to vulnerable populations is too high to continue to allow patient-facing workers to be vehicles of contagion, particularly when there is an easy, safe, and effective way of prevention – and particularly when leaving staff unvaccinated prolongs the suffering of seniors in care. A temporary provincial order would certainly be an extraordinary measure, but it is the right one for a truly extraordinary time.

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