Written by Justin Choy, 3L, Western Law
Ontario is in Phase 1 of its distribution of the COVID-19 vaccine. Vulnerable populations, hospital employees, and congregative living employees, amongst others, are being prioritized in the administration of the vaccine. A question arises whether healthcare institutions such as acute care hospitals and long-term care homes can implement mandatory COVID-19 vaccination policies as a condition of employment for unionized healthcare workers who have frequent patient contact. Given the devastating social, economic, and public health impacts of COVID-19, and considering earlier decisions, the answer is probably that they can do so.
History: Influenza Vaccination Policies
The sizable body of arbitral jurisprudence regarding influenza vaccination provides significant precedential value in addressing mandatory COVID-19 vaccination. In 2010, acute care hospitals began implementing various influenza vaccination policies in an attempt to increase low rates of healthcare worker vaccination. These influenza vaccination policies typically took one of two forms:
- Mandatory influenza vaccinations; or
- Vaccinate-or-mask policies (“VOM” policies) which offer the choice between receiving the influenza vaccination or wearing a surgical mask.
Earlier Arbitration Decisions
Prior to 2014, arbitrators typically upheld the enforceability of influenza inoculation on both a mandatory and VOM basis. In the 2013 decision Health Employers Assn. of BC, Arbitrator Diebolt found the hospital’s VOM policy to be a reasonable exercise of management rights. First, it was held that the policy was not a negotiated provision of the collective agreement. The relevant immunization provision stated only that employees may be required to take vaccination or other immunization. In contrast, the VOM policy at issue provided the choice between vaccination and masking, and therefore, was an exercise of management rights subject to the reasonableness standard set out in the seminal case of KVP.
Turning to the reasonableness of the VOM policy, Arbitrator Diebolt held that the influenza vaccine, which is approximately 60% effective from year-to-year, was an effective means of reducing the risk of influenza infection. Despite heavily conflicting expert evidence, he also made the simple yet important finding that since “infected healthcare workers can transmit influenza to persons they come into contact with, it must be true that preventing or reducing influenza in health care workers reduces the risk they will transmit influenza to patients.”
In Chinook Health Region, an Alberta award from 2002, the arbitrator upheld the validity of a mandatory influenza vaccination policy which required care-giving employees at a long-term care facility to either vaccinate or take unpaid leave. The long-term care facility’s interest in preventing and containing influenza outbreaks amongst elderly residents and staff justified the need for the mandatory policy. Moreover, the arbitrator reasoned that the employees’ right to bodily integrity were not violated since they had the choice to refuse vaccination. Chinook, in line with the surrounding arbitral jurisprudence, also noted that exemptions to vaccination must be made for employees with medical conditions or religious beliefs that make vaccination untenable. Prior to 2014, only one Canadian decision held a mandatory vaccination policy to be invalid [St. Peter’s Health System v. C.U.P.E., Local 778 (2002), 106 L.A.C. (4th) 170)]
More Recent Decisions
Two more recent arbitral decisions from Ontario have ruled against the enforceability of influenza VOM policies enacted by acute care hospitals, demonstrating a departure from prior decisions. Sault Area Hospital and St. Michael’s Hospital, decided in 2015 and 2018 respectively, both held that the hospitals’ VOM policies were unreasonable exercises of management rights and therefore unenforceable.
In Sault Area Hospital, Arbitrator Hayes, having heard similar expert testimony relied upon in Health Employers Assn. of BC, concluded that the literature as a whole did not establish that healthcare worker vaccination was an effective means of preventing nosocomial influenza transmission to patients. Arbitrator Hayes acknowledged the large body of conflicting literature on the issue. However, he held that “while the precautionary principle (“reasonable efforts to reduce risk need not wait for scientific certainty”) surely applies in truly exceptional circumstances”, the evidence before him was insufficient to justify the need for the VOM policy.
Arbitrator Haye’s reasoning was adopted in St. Michael’s Hospital where a similar VOM policy was found to be unreasonable. Both decisions turned on the quality of the available medical evidence on the efficacy of influenza vaccination and masking. Arbitrator Kaplan concluded by stating “if a better vaccine and more robust literature about influenza-specific patient outcomes were available, the entire matter may be appropriately revisited.”
Takeaways for COVID-19 Vaccination Challenges
- The first issue that must be addressed is identifying the legal source of authority an employer is relying upon in enforcing a mandatory COVID-19 vaccination policy.
Influenza VOM policies typically involve an exercise of management rights given that healthcare sector collective agreements rarely speak to the masking component of such policies. With respect to COVID-19, healthcare employers will need to determine whether a mandatory vaccination policy is permitted pursuant to a negotiated collective agreement provision, or whether the policy is an exercise of management rights subject to the KVP reasonableness test. This will depend heavily on the language and obligations set out in a specific collective agreement.
- Much like the literature surrounding the influenza vaccination, there will likely be a lack of scientific consensus regarding whether the COVID-19 vaccine will be able to prevent nosocomial COVID-19 transmission to patients.
However, there is a strong argument to be made that the current pandemic is precisely the type of “exceptional circumstance” referenced in Sault Area Hospital that warrants an application of the precautionary principle. Accordingly, healthcare employers are likely to argue that a lack of scientific certainty should not bar the enactment of mandatory COVID-19 vaccination policies given the severity of the virus.
- Significant weight will be placed on the health and safety of patients and long-term care residents when assessing the reasonableness of a mandatory COVID-19 vaccination policy.
Despite the recent line of case law finding influenza VOM policies to be unreasonable, a mandatory COVID-19 testing policy for employees of a retirement home was recently upheld. In Caressant Care, retirement home employees were required to be tested for COVID-19 every two weeks. The testing policy was found to be reasonable because preventing the spread of COVID-19 throughout elderly residents justified the privacy intrusions caused by nose swab testing. However, mandatory vaccination policies will attract increased scrutiny given the greater infringement upon employee privacy caused by the administration of the vaccine.
- The greater severity of COVID-19 in comparison to the influenza supports the need for mandatory vaccination.
While both the influenza and COVID-19 are typically spread through droplet transmission, COVID-19 may also be spread through airborne transmission. Individuals may be infectious during the 2-14 day COVID-19 incubation period (time between infection and experience of symptoms), while the flu may be spread in its 1-4 day incubation period. In the United States, the influenza has caused between 12,000-61,000 deaths since 2010, whereas 402,000 COVID-19 related deaths have been reported to date.
- Employees can refuse vaccinations based on religious and medical grounds.
Such exemptions are in line with an employer’s duty to accommodate and relevant human rights legislation. Medical grounds for exemption may take the form of allergies to ingredients used within the COVID-19 vaccine.However, employees who are “conscientious objectors”, without a disability or a religious basis for their refusal to take the vaccine, may find themselves without a persuasive legal basis to continue to work. While an employee has the absolute right to determine what is injected into her body, a refusal on “conscientious” grounds may mean that the employer has no duty to accommodate the employee by placing her in another position.
Justin Choy, “Calling The Shots: Is Mandatory COVID-19 Vaccination a Permissible Condition of Employment for Healthcare Workers?” Canadian Law of Work Forum (January 29 2021): https://lawofwork.ca/mandatoryvaccine/
Vanessa G., S. Reed & A. McGeer, “Health care workers, mandatory influenza vaccination policies and the law” (2014) 186:14 CMAJ (“History – Mandatory Influenza Vaccination History”).
Re Health Employers Assn. of British Columbia (Influenza Control Program Policy),  B.C.C.A.A.A. No. 138, at paras 179-180 (“Health Employers Assn. BC”).
KVP Co., (1965) 16 LAC 73
Chinook Health Region  A.G.A.A. No. 88. (“Chinook”).
Sault Area Hospital and Ontario Hospital Assn. (Vaccinate or Mask), Re, 2015 CarswellOnt 13915,  O.L.A.A. No. 339, (“Sault Area Hospital”).
St. Michael’s Hospital and ONA, Re137 C.L.A.S. 172, (“St. Michael’s Hospital”).
Ibid,at para 132.
Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada, 2020 CanLII 100531 (ON LA), (“Caressant”).
Centers for Disease Control and Prevention, COVID-19 Vaccines and Allergic Reactions(December 2020), online: < https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/allergic-reaction.html>