Podcast: Mandatory vaccination for health care workers
Transcript
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Kirsten Patrick (host): Immunization against the virus that causes COVID-19 is a top priority in Canada at present, with multiple levels of government working hard to vaccinate key populations as quickly as possible. The vaccination rollout is prioritizing health care workers especially staff caring for patients with COVID-19. But as with other vaccines, some healthcare workers will opt not to receive it, which leads many people to wonder can and should the vaccine be made mandatory for healthcare workers in Canada? I'm Kirsten Patrick, executive editor for the Canadian Medical Association Journal. Today I'm talking to Colleen Flood, one of the authors of the CMAJ analysis article that explores the legalities around mandating vaccination for healthcare workers. Colleen is a professor in the Faculty of Law at the University of Ottawa, and the inaugural director of the University of Ottawa's Center for Health Law, Policy and Ethics. Hello, Colleen.
Colleen Flood (interviewee): Hi, Kirsten.
Kirsten Patrick: So thanks for joining me today. Let's start off by you giving us a bit of insight into why you wrote this article for CMAJ. What are you and your co-authors talking about in your circles at the moment?
Colleen Flood: Yeah, thanks, Kirsten. Well, my colleague, Dr. Kumanan Wilson, and Professor Brian Thomas, and I have been thinking about questions around immunity certificates, vaccination certificates, and mandatory vaccinations, partly because we're seeing, you know, a lot of discussion about access to vaccinations and who will get vaccinations and in what order. But we wanted to sort of try to think a little bit ahead of that. And to think about the question of whether or not we could or should actually require health care workers to be vaccinated. Right at the moment, all we can think about is people who want the vaccination not being able to get access to it. But over time, I think we're going to be starting to ask the question, Well, you know, should we be requiring certain categories of people, in this case, healthcare workers to be vaccinated both to protect themselves and their patients that they're working with, but other health care workers as well.
Kirsten Patrick: So in the past, there has been mandatory vaccination policies in place, particularly for influenza, which you look at in this article. But I just wanted to talk about the two routes that this might go by. In the article, you say that it could happen at the employer level or at the provincial government level. So could you talk us through the difference between those two and which one you think is best?
Colleen Flood: For sure. And, you know, I think this is all fairly complicated legal questions, but the important thing to understand is that there are really two policy routes to take here, if we're looking at mandatory vaccinations. The first is what has tended to happen in the past is that governments leave this up to the decision making of individual employers. So up to regional health authorities, or different public hospitals, different long term care homes, different retirement homes, you know, it's really up to those individual employers to make that decision. And if that happens, then we're really in the realm of labor law. And we're looking at what claims for example, a union could make to contest a decision by an employer, for example, a public hospital to mandate that healthcare workers be vaccinated for SARS-CoV-2. On the other hand, the other policy route would be if, and this is the policy route that we prefer, would be the government set clear rules that would apply across all healthcare spaces. So across retirement homes, across long term care homes, across public hospitals. We think that that's important and that we shouldn't just leave it, for example, to individual retirement homes, to make decisions about whether or not to require their health care workers to be vaccinated or to individual public hospitals. So in that case, if the government itself sets a clear rule, then it is much more clear that that could be contested under the Charter of Rights and Freedoms. So really there are sort of two policy conduits. One is of individual employers make this kind of decision, and then we're in the realm of labor law. And the other is if, and the one that we prefer is if the government sets clear rules to apply across all healthcare spaces. And then I think we're in the realm of a potential Charter challenge. So a healthcare worker that didn't want to be vaccinated, bringing a challenge to a rule that a government may have that a vaccination is required.
Kirsten Patrick: So let's circle back to that a little bit later. So when we're talking about SARS-CoV-2 vaccination, there are no legal precedents for this right now. But it could be a good idea for employers to mandate vaccination for health care workers. And why would that be?
Colleen Flood: Well, the tricky thing, as we point out in the article, is that right now, we don't have clear slam dunk scientific proof that SARS-CoV-2 vaccination will prevent transmission of the virus. However, the expectation, and certainly the hope is that that will be the case. But assuming that that does come to pass, then obviously the reason that we want health care workers to be vaccinated is to protect the patients, particularly vulnerable patients that they're working with, and other health care workers. As well as I think we also have a public interest in the health care workers themselves, not falling ill with COVID so that they're able to provide care to patients. So there's a bunch of reasons there. Some predicated on evidence coming forward, or, you know, being demonstrated that the vaccination actually prevents transmission. But some of that also grounded in just protecting the health of the healthcare worker, him or herself in a kind of instrumental way, in that we removed all healthcare workers who are able to be providing care at this time.
Kirsten Patrick: And that second function seems to be quite clearly supported by evidence from the trials that fewer people acquire the virus if they're vaccinated, so we can expect much less illness in vaccinated healthcare workers.
Colleen Flood: That's right.
Kirsten Patrick: So in the past, there have been mandatory vaccination policies in different jurisdictions for influenza. And in your article, you look at some of the case law that's come out of challenges to vaccination mandates for influenza. Can you tell us a little bit about that?
Colleen Flood: Sure. So most of the case law so far is in labor law, because as I said, most of the decisions have been left to individual employers, so public hospitals, and so forth. And so what happens then, is in the case of influenza, sometimes unions have challenged if it's by hospitals to impose flu vaccination requirements, on for example, nurses or other health care workers on the grounds that such a mandate is an unreasonable unilateral exercise of managerial rights. But on the whole, the way that the case law has evolved, which is when we're talking case law, here, we're talking about decisions of labor arbitrators. And the way that this has evolved is that labor arbitrators have upheld mandates and the mandates, you must be vaccinated or wear a mask in the time of an influenza outbreak. However, outside of the context of an outbreak, there is some decisions that suggest that such a mandate is an unreasonable exercise of managerial rights. And these challenges have actually suggested that really, there's no evidence of benefits from wearing masks and protective gear in the context of influenza. So I think all of this is very interesting, because of course, the evidence around masks and personal protective clothing have evolved considerably in the context of SARS-CoV-2. And so you know, when we come to the question of vaccination for SARS-CoV-2, the context is very, very different from influenza. And I think that's a really important point to take away from this. Is that the case law if you like, and the responses or how the law has responded to mandates for influenza vaccine will be different for SARS-CoV-2, because the context of SARS-CoV-2 is very different.
Kirsten Patrick: And so when you were talking about government mandates, so that would mean that the government would say that all healthcare institutions would need to require vaccination for workers who were in contact with patients. When that happens, you're talking, I think, at the provincial level, because the federal government doesn't hold that sway?
Colleen Flood: Yeah.
Kirsten Patrick: So what would be the consequence of that? How would that make things easier for employers or not make things easier for employers? And how would people challenge something like that, potentially?
Colleen Flood: I think it would make it easier for employees that, you know, they wouldn't have to take this on vis-à-vis a challenge from unions individually, they'd be able to rely on a clear rule from the provincial and territorial government about what needs to happen across the board. But as I said, then it would be much more clearly subject to a Charter challenge, because it is government action, which is something that an individual could bring a challenge, for example, under section seven of the Charter of Rights and Freedoms, which protects one's rights to life, liberty, and security of the person. So requiring somebody to have a vaccine may be seen as an encroachment upon one's liberty and security of the person. Now, to be clear, when we're talking about mandatory vaccines, here, we're not actually talking about holding somebody down, and you know, sticking a needle in them when they physically are resisting, but rather to say that, you know, if one doesn't want to have the vaccine, then one may have to stay home from work without pay, or possibly that one has to wear personal protective clothing, or something along those lines. So when we talk about a mandate, we're not actually talking about a pure mandate or a hard mandate, but rather that you probably have an unpalatable option of not being paid if you weren't vaccinated. So the question is whether or not when could bring a challenge to that under section seven of the Charter of Rights and Freedoms. Now, what we argue in the paper is that provided you know that this isn't physically forcing anybody to have a vaccination against their will. But rather than giving them this unpalatable, perhaps economic option of not being paid, that we don't think that this is engaging with one's section seven liberty and security interests, because this is what we would describe as an economic right. And section seven of the charter has not historically protected economic rights, like the right to practice their profession, or essentially to earn money. So we don't think it would be engaged by section seven of the charter. But even if we're wrong about that, we think that otherwise the government could defend it under other aspects of the Charter analysis. So for example, that to require mandatory vaccination in the context of SARS-CoV-2 is in accordance with the principles of fundamental justice. This is another aspect or part of the test of section seven. And then going on from that, that it's also defensible under section one of the Charter, which basically says that the deprivation of the right has to be proportionate or reasonable. And again, all of this is in the context of COVID-19 and SARS-CoV-2. So all of the factors, you know, the risks of COVID-19, the harm that's been caused by it, the benefits and evidence about the vaccine, all of these things have to go into the mix to determine whether or not a mandate for a vaccination for healthcare workers is justifiable under the Charter of Rights and Freedoms. I'm sorry, it's a lot.
Kirsten Patrick: It's all great. So thanks for clarifying those nuances. If we come back to the individual healthcare worker, you talked about choices that they might have you talk about vaccinate or mask or vaccinate and wear PPE or vaccinate and stay home. Now, if an individual healthcare worker were to argue that they needn’t be vaccinated because they are complying fully with some PPE requirements, would that justify their right to not have a vaccine?
Colleen Flood: As we say in the article, we think that's probably the greatest likelihood of a challenge is to a mandate is a health care worker arguing Well, look, you know, I don't want to be vaccinated and I'm wearing PPE or I'm taking other kinds of precautions. And so this is sufficiently protective of folks, and of myself. So on that score again, it's going to come down to the evidence. And it's very important for governments, if they wish to uphold a mandate to carefully consider their evidence, that's the first thing. They can't just not look at it, they have to consider the evidence of the benefits of vaccination, the extent of the evidence, and the extent of the evidence of the benefits of PPE and masking. And other factors might come in here such as, you know, when people are using PPE, how well do they use it? The costs and, you know, prospects of securing appropriate PPE, all of those things might come in to the mix into considering whether or not it is, you know, essentially reasonable for a healthcare worker to say, I don't want to be vaccinated, I just want to wear PPE. So we think that, you know, applying the precautionary principle, the governments would still be within the realm of reasonableness if they are asking health care workers to be vaccinated. And of course, at the beginning as we're rolling this out health care workers will be wearing PPE and being vaccinated all at the same time that we think applying the precautionary principle, it is reasonable for governments to say, look, we want you to be vaccinated, as well as wearing PPE. And over the longer run, that PPE should not be a substitution for vaccination. And as I say, you know that it is really important, governments can't just say this, they actually need to really consider it. And I think that we argue that the federal government should really be helping the provinces here, collecting the real world evidence of how the vaccines working, you know, in the different populations that weren't included in the trials, and the evidence of the relative efficacy of PPE and masking and so on and in different situations so that provincial governments have the best evidence base from which to make these policy determinations about vaccine mandates, and you calibrate them over time.
Kirsten Patrick: What about exemptions for a vaccine mandate?
Colleen Flood: Yes, absolutely. I should have actually reiterated this before, but to be constitutionally compliant, as we say, to survive a Charter challenge, then there clearly has to be exemptions for some categories of individuals. So for example, those who for health reasons, are unable to take the vaccine, and those for whom there is genuine religious or conscience objections. There'll be very few real religious, you know, objections to having a vaccine. And conscientious objections are a little bit more complex, because one might imagine that people who are just, you know, anti-vaxxers, perhaps or suspect of vaccinations, you know, suspicious of pharmaceutical companies and governments and so forth. The extent law is that I don't think that an anti-vaxxer can essentially argue a conscience objection. But still, you know, those with genuine religious or conscience objections, they will need to be exempted under any mandate as well. And then as we've just discussed, Kirsten, there is the question of whether or not an individual could argue that they should also be exempted if they wear PPE. And as discussed, we contend that no, there shouldn't.
Kirsten Patrick: In the next few months or a year, as the vaccine rolls out, and people are being vaccinated, what do you see as the possibilities for mandating vaccination or not in Canada?
Colleen Flood: Well, I think, despite what we would like to see, I think, unfortunately, provincial and territorial governments are more likely just to leave this to individual employers. And I think that's, you know, so we'll have sort of spotty kinds of implementation across the country. And what I worry is that, as we've seen with our focus on hospitals and physicians, as opposed to long term care homes and personal support workers and so on, is that this kind of approach will mean that where we have the most vulnerable is not necessarily where we will see all the people that should be vaccinated, being vaccinated aka the health care worker, and personal support workers I would include there. So that is our concern. And, you know, the politics of COVID-19 in Canada has been one of I think, for me, you know, deflection of accountability and devolution of decisions to the local level at individual public health units to individual long term care homes, etc. And I think we've all seen the consequences of that. What I would like to see, and I think my co-authors too, is that, that really provincial and territorial governments that to seize the middle of their responsibilities here, I think a lot of this decision making has been predicated on the hope of the vaccine. Well the vaccines are here. So let's make sure that we redeploy them appropriately. And that we really have an eye on where the risks are. And that requires that we set some firm rules across both private and public settings.
Kirsten Patrick: So I think it's important to underscore that in this article, we're not talking about a blanket vaccine mandate for the whole population, you're just talking about health care workers, and their particularly important role in keeping the population safe, as it were.
Colleen Flood Absolutely. Yeah, no, we're not talking about across the board vaccination, that would be the topic for a separate paper, but that, you know, the evidence is about the risks. The risks and the benefits are very important for legal analysis. And so, you know, the particular risks for healthcare workers, and the impact of this on their ability to deliver health care, in the context of the pandemic, you know, are critical to how a court would approach the review of any Charter challenge or any labor law challenge to a mandate.
Kirsten Patrick: Well, thanks for this great discussion. And thank you for joining me today.
Colleen Flood: It's been very enlightening. It’s my pleasure, Kirsten, and thank you very much for your interest in this.
Kirsten Patrick: I've been speaking with Professor Colleen Flood of the University of Ottawa. To read the article she co-authored, visit cmaj.ca. And don't forget to subscribe to CMAJ Podcasts on Soundcloud or a podcast app. Let us know how we're doing by leaving a rating. I'm Dr. Kirsten Patrick, executive editor at CMAJ. Thank you for listening.