An analysis undertaken by Faculty of Law professors and a physician-researcher from the Faculty of Medicine at the University of Ottawa feels provincial and territorial governments should set clear rules for vaccinating health care workers against SARS-CoV-2, the virus that causes COVID-19, in public and private settings.
Mandatory vaccination for health care workers: an analysis of law and policy, published in the Canadian Medical Association Journal (CMAJ), describes legal precedents from attempts to mandate influenza vaccines for health care workers and how those precedents might apply to SARS-CoV-2 vaccination. It also describes the legal justification for mandating SARS-CoV-2 vaccination for health care workers and other legal considerations.
When creating policy for mandatory vaccination of health care workers, it will be important to include exemptions for people who cannot receive a vaccine because of underlying health issues or other reasons. These exemptions will help protect government mandates if there is a challenge under the Canadian Charter of Rights and Freedoms. Based on current evidence, these challenges would likely be unsuccessful if there are exemptions in place for employees. It is important to note that any vaccinate or stay at home order would not force a health care worker to be vaccinated.
“An effective vaccine provided to health care workers will protect both the health workforce and patients, reducing the overall burden of COVID-19 on services and ensuring adequate personnel to administer to people’s health needs through the pandemic,” writes Colleen Flood, Professor of Law – Common Law section and Research Chair in Health Law & Policy, with coauthors.
“What is less clear is whether or not a health care worker could argue that they should be able, in lieu of vaccination, to wear personal protective equipment,” says Professor Flood. “Initially, even those vaccinated will continue to wear PPE, but we think courts should accept the application of the precautionary principle to require vaccination in most circumstances. It will, however, be essential to collect and weigh real-world evidence of the benefits of both vaccines and PPE.”
“This is an important issue to address with science and law working together,” says Dr. Kumanan Wilson, Clinical Research Chair in Digital Health Innovation at uOttawa and a Senior Scientist at The Ottawa Hospital. “Given the rapid development of various COVID-19 vaccines and emerging evidence, new data will determine whether these policies will stay in effect or will be modified.”