By Colleen M. Flood, Bryan Thomas & Kumanan Wilson
Mandatory vaccination is a tricky subject. People in liberal societies like ours are suspicious of being compelled to do anything at all, much less receive an injection. And in the context of SARS-CoV-2 (COVID-19), rapid vaccine development likely has exacerbated vaccine hesitancy. However, in the midst of the deadly SARS-CoV-2 pandemic, and with a clear need to ensure an adequate supply of health care workers and protect the patients they care for, can and should SARS-CoV-2 vaccinations be required for health care workers (HCWs)? We argue they should.
In the past, decisions about whether to require HCWs to receive the annual flu vaccine have generally been left to individual hospitals and institutions. In our view, in the context of the COVID-19 pandemic, provincial and territorial governments need to take control of this matter now and set clear and unequivocal rules that apply to all institutions. This is particularly important for SARS-CoV-2 since disparities in response measures have led to devastating outbreaks in some long-term care and retirement homes and it should not be left for local administrators to decide whether HCWs at these facilities are vaccinated. There will no doubt be reservations on the part of some HCWs towards vaccination mandates – and perhaps more so at retirement and long-term care facilities where fewer HCWs have significant clinical training. Normally the best approach to vaccine hesitancy would be a campaign of education and persuasion, but in the circumstances of this pandemic there is no time for this. Vaccination of HCWs against SARS-CoV-2 is already imperative and must proceed quickly.
Any kind of government mandate for vaccination could be subjected to a Charter challenge (under s. 7 that protects life, liberty and security of the person). Much of the existing case law involves labour law challenges to requirements by hospitals and other institutions that staff receive flu vaccines. It is important for decision-makers – both governments and courts reviewing a Charter claim – to acknowledge that SARS-CoV-2 is not influenza. There is a need for decisive precautionary measures given SARS-CoV-2 has a higher transmission and case-fatality rate. As such, a government mandate for HCWs to be vaccinated against SARS-CoV-2 will likely survive constitutional challenge, subject to the following three caveats.
Our first caveat concerns interpretations of the word “mandatory.” Any mandate in Canadian law would not mean that anyone will physically force anyone else to be vaccinated. By “mandatory” we mean that there will be significant consequences for those who choose not to vaccinate, for example that they will be required to stay at home and not be paid. Such a “mandate” should not trigger s. 7 of the Charter of Rights and Freedoms, which does not generally protect economic rights and/or the right to practice a profession.
Second, any “mandate” for vaccination must have some exemptions to be both ethically and legally defensible. So, those who for health reasons are unable to be vaccinated need to be exempted as well as those with genuine religious or conscience objections (scientific skepticism about vaccines not falling within those parameters).
Our third caveat is that government must continue to monitor the effectiveness of vaccination in preventing transmission, and lift mandates if they are not supported by the science. Vaccine-hesitant HCWs may argue that wearing personal protective equipment (PPE) should be sufficient to protect themselves, their patients, and others that they work with. This is a particularly difficult question to resolve as the evidence on the efficacy of the vaccines and their effects on transmission is still evolving, and the evidence for PPE is of a different quality. A relevant factor may be the difficulty of procuring PPE and pragmatically whether it is used appropriately to reduce the risk of acquiring SARS-CoV-2. Notwithstanding evidentiary uncertainty, Canadian governments should be able to defend a mandate for vaccination by applying the precautionary principle – a well-established framework for decision-making in public health which admits of the difficulties of perfect evidence in the context of a fast-moving pandemic. This would justify a mandate even in the absence of clear evidence of reduced viral transmission given the unique severity of the COVID-19 pandemic. If phase 3 trials provide data suggesting reduction in infectivity, the argument in favour of vaccine mandates (with no opt-out for PPE) will be considerably strengthened.
All of this speaks to the importance of legal decisions and evolving scientific evidence marching forward in unison. But where there is uncertainty, the ethos of public health argues we move forward with risk-mitigating measures even if these may restrict individual rights and freedoms. This has been the case throughout the pandemic from lockdowns to mask mandates. Arguably, the scientific evidence supporting mandatory vaccination outstrips the otherwise reasoned scientific basis of other precautionary measures taken to date.
At the moment our focus is on vaccine roll-out and getting the vaccines to all who want them. However, soon our attention must turn to whether essential HCWs, working with those at great risk from SARS-CoV-2 have in fact been vaccinated. Faint hearts and handwringing will not bring back lives and provincial and territorial governments need to set clear rules for this while staying attentive to the evolving evidence and merits of different vaccines and PPE.
A fuller discussion is available in CM Flood, B Thomas, K Wilson, “Mandatory vaccination for health care workers: an analysis of law and policy” CMAJ 2021 early-released January 19, 2021, Available online: https://www.cmaj.ca/content/early/2021/01/19/cmaj.202755 We would like to thank Ryan Tanner for his editorial comments.
Colleen Flood is a Professor in the Faculty of Law at the University of Ottawa and University Research Chair in Health Law and Policy; Director for the University of Ottawa Centre for Health Law, Policy and Ethics. Bryan Thomas is a Senior Research Associate, University of Ottawa Centre for Health Law, Policy and Ethics. Kumanan Wilson is a Professor, Department of Medicine, University of Ottawa; Senior Scientist, Clinical Epidemiology Program, Ottawa Hospital Research Institute; Scientist, Institute for Clinical Evaluative Sciences.