Provincial and territorial governments in Canada should instate mandatory COVID-19 vaccination for health care workers in both public and private settings, according to an article, now available in both English and French, in the Canadian Medical Association Journal. In the article, Dr. Kumanan Wilson and colleagues from the University of Ottawa conclude such rules would also survive a Charter challenge. This work is part of a research project funded by the Government of Canada through its COVID-19 Immunity Task Force, as well as by the Canadian Institutes for Health Research.
As Canada enters a mass vaccination campaign against SARS-CoV-2, the virus that causes COVID-19, healthcare workers are at the front of the queue to get vaccinated. As frontline workers, those in healthcare are both at increased risk of contracting the virus and of transmitting it. In this analysis, Dr. Wilson and colleagues explore the legal feasibility of mandatory vaccination among healthcare workers in Canada.
The authors argue that an effective vaccine provided to all healthcare workers in Canada would protect both the health workforce and patients, reducing the overall burden of COVID-19 on services and ensuring adequate qualified personnel to ensure people’s health needs are met through the pandemic. They also point to other advantages of mandatory vaccinations: the expense and difficulty of procuring personal protective equipment (PPE) and, pragmatically, whether PPE is used appropriately to effectively reduce the risk of acquiring SARS-CoV-2 infection for both healthcare workers and their patients.
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, such as what happened with case law related to mandatory influenza vaccination. In 2019, nurses in B.C. won a case against mandatory vaccination policies at their workplaces, making vaccination a matter of individual choice. However, COVID-19 is not influenza. Given the severity of the global pandemic, the authors suggest it is unlikely that challenges to a government mandate would be successful.
The authors acknowledge that government mandates for the vaccination of healthcare workers could be challenged under the Canadian Charter of Rights and Freedoms but believe that these challenges would likely not succeed if provisions were made for those who could not receive the vaccination due to underlying health issues or for those who object to vaccination on religious or conscientious objection grounds.
Although healthcare workers could argue they have the right to choose to wear PPE in lieu of receiving vaccination, the authors echo what many other researchers, physicians and public health experts have stressed: there is not yet enough evidence of the effectiveness of PPE in reducing transmission of SARS-CoV-2, adding that governments must support research comparing the effectiveness and safety of the various COVID-19 vaccines relative to the effectiveness of PPE.
Flood CM, Thomas B, Wilson K. Vaccination obligatoire des travailleurs de la santé: analyse juridique et politique. CMAJ. 2021 Apr 26;193(17):E629-33. doi: 10.1503/cmaj.202755-f.