can covid-19 vaccinations be mandated?

the process of vaccinating  canadians against covid-19 has begun . with the rise in  vaccine hesitancy , and many refusing even to wear masks, people are wondering whether covid-19 vaccination could be mandatory.

employers have many reasons to consider mandatory vaccination. one reason is their legal duty to take “ every reasonable precaution ” to create a safe working environment.

while that duty compels some pandemic-related directives, there is  disagreement about whether a vaccination policy  is among them. either way, any subsequent policy would be subject to certain considerations.

the main consideration would likely be human rights legislation, which protects employees against discrimination on specified grounds. a mandatory vaccination policy has implications for those for whom a  medical condition  or religious belief makes vaccination untenable.

legal concerns aside, accommodation, specifically for those with a medical need, just makes sense. that’s because one argument for widespread vaccination is to achieve  herd immunity , that can protect those who aren’t vaccinated.

in unionized workplaces, employer policies are subject to further considerations — namely collective agreement language, and a  reasonableness test . there are many things that may render a policy unreasonable, such as whether the intrusion into employee privacy by collecting personal health information is outweighed by the benefit of doing so.

a mandatory covid-19 testing policy for employees of a retirement home  was recently upheld  on the basis that the intrusion into privacy was justified, despite the fact that other safety measures were already in place and no outbreak had yet occurred.

by contrast, arbitrators have previously been divided about employer policies concerning seasonal flu vaccination, with some arbitrators finding them to be reasonable,  while others have disagreed . again, decisions are fact-dependent. the fact that covid-19 is a much deadlier virus than seasonal flu, and that current vaccines are  much more effective,  matters.

mandating vaccination through laws is another possibility. previously, attempts to do so have mostly,  but not only , been concerned with admission to schools.

existing school-entry vaccination laws, however, allow parents to easily obtain exemptions. vaccination, in fact, is not actually mandatory for school admissions. the most recent attempt to limit these exemptions to cases of medical need was narrowly defeated  earlier this year  in new brunswick.

ontario’s health minister recently stated that people will receive  proof of covid-19 vaccination , anticipating situations that will require documentation — including travel. notably, in august, transport canada issued a directive requiring  proof of medical exemption  before boarding a plane without a mask. implicit in this directive is that non-medical reasons for mask refusal are unacceptable.

any similar law allowing only medically based exemptions from vaccination (for travel or school entry, for example) would certainly be challenged in court under canada’s charter of rights and freedoms. a recent charter challenge to newfoundland and labrador’s travel restrictions  was unsuccessful , but other challenges to various  lockdown measures are underway .

a well-crafted law could be defended as proportional, all things considered. the charter itself allows for a “ balance between the rights of the individual and the interests of society .” pandemic considerations could tilt that balance in favour of deference to government decision-making.

people have a legal right to  refuse medical treatment . but this right is not necessarily violated by denial of access to communal spaces due to that refusal.

with that said, the pandemic, far from being the crisis that has us all pulling in the same direction, has  heightened societal rifts .

in that context, the  ongoing debate  over whether mandates or persuasion is a better vehicle for increasing vaccination rates is taking on an increased urgency.

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