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Province could likely mandate COVID-19 vaccine for health workers — and win a legal challenge, analysis says

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If provinces and territories mandated vaccines for health-care workers, they would likely win any charter challenges launched by aggrieved employees, so long as some exemptions were permitted, a new legal analysis argues.

Such challenges “likely will not succeed if provisions are made for those who cannot receive the vaccination because of underlying health issues and for those who object to vaccination on bona fide religious or conscientious objections grounds,” states the paper, published Tuesday in the Canadian Medical Association Journal.

When Canadian hospitals in the past have mandated workers to get vaccinated for the flu or wear masks, unions have successfully fought those policies at boards of arbitration.

But arbitration decisions would have limited precedential value on the question of whether governments should require health-care workers to be vaccinated, the analysis states.

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“Agreements reached in the labour-law context do not limit choices by Canadian governments or employers with respect to SARS-CoV-2 vaccinations,” it reads.

Ultimately it should be governments that establish the rules on vaccines, not individual employers such as hospitals and long-term-care homes, the authors argue. Those rules should cut across all public and private settings.

“Providing that kind of clarity around the rules would be advantageous,” co-author Bryan Thomas said in an interview.

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Without such clarity, there will be confusion and more outbreaks, warned Thomas, senior research associate with the Centre for Health Law, Policy and Ethics at University of Ottawa.

The vaccine supply challenges in Canada have so far tamped down debate on the issue, but the paper will hopefully spark some discussion, he said.

Co-author Colleen Flood said it is unclear whether a health-care worker could successfully argue that they should be able to wear personal protective equipment in lieu of getting a vaccine.

“Initially, even those vaccinated will continue to wear PPE, but we think courts should accept the application of the precautionary principle so as 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,” said Flood, University of Ottawa research chair in health law and policy.

So far, no provinces or territories have mandated vaccines. Ontario has no plans to do so “but we are strongly encouraging people to embrace the opportunity,” said Carly Luis, spokesperson for Health Minister Christine Elliott.

Anthony Dale, president of the Ontario Hospital Association, said the sector is encouraging voluntary uptake.

“While we do not believe the vaccine should be mandatory, there is a strong need for government to implement strategies to address vaccine hesitancy, remove barriers to vaccine uptake and establish clear and consistent parameters around protocols for workers who do refuse to be vaccinated,” he said.

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Dr. Tim Rutledge, president of Unity Health, which includes St. Michael’s Hospital in Toronto, said that vaccination efforts have so far focused on high-risk areas such as the emergency department, critical care, COVID-19 units and general internal medicine. Uptake in those areas has been excellent, he said, adding that entire teams have been vaccinated, included doctors, nurses, custodial staff and porters.

Rutledge said that the health world is seeing the first signs of hesitancy, which is more notable in the long-term-care sector than in hospitals.

He said he would rather see efforts focused on educating workers about the importance of the vaccine rather than forcing it on them:

“I think we need to do all that we can to address any misconceptions and myths. We need to provide a ton of education to health-care providers to get them up to speed on why we are recommending it.”

The Ontario Nurses’ Association has in the past launched successful grievances against hospitals that have mandated influenza vaccinations or masks.

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ONA president Vicki McKenna said the union is recommending that nurses get the COVID-19 vaccine if they can. But she said any decision must be “based on voluntary and informed consent.”

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Michael Hurley, president of the Ontario Council of Hospital Unions, said that making vaccines mandatory would not work:

“If staff have to choose between taking a vaccine that they do not want to take and working they may choose not to work, which will just worsen acute staffing shortages.”

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