Can governments mandate COVID-19 vaccines for long-term care staff? Experts weigh in

As the mass vaccination effort against COVID-19 continues across Canada, Ontario became the first province to make receiving the shot mandatory for staff members at long-term care homes.

In a statement released Monday afternoon, Ontario Minister of Long-Term Care Dr. Merrilee Fullerton said, “widespread vaccination within long-term care homes is the best way to protect residents, staff and their families.”

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All long-term care (LTC) home staff will now be required to provide proof of vaccination of each dose, provide a documented medical reason for not being vaccinated or participate in an educational program about the benefits of vaccination and the risks of choosing not to be vaccinated.

But can provincial governments legally mandate vaccines for certain employees, and could vaccinations be mandated at other workplaces?

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Here’s what experts say.

Can the government legally mandate vaccination for LTC staff?

Lior Samfiru, an employment lawyer and co-founding partner at Samfiru Tumarkin LLP, said legally, employers cannot demand that employees be vaccinated.

Doing so could infringe upon human rights legislation and could also infringe upon an individual’s privacy rights, he explained.

Click to play video: 'Saskatoon long-term care home excited by easing of restrictions'

Saskatoon long-term care home excited by easing of restrictions

Saskatoon long-term care home excited by easing of restrictions

Instead, Samfiru said employers must rely on governments to determine whether a workplace is safe if its employees have not been vaccinated.

When it comes to long-term care homes, Samfiru said the Ontario government has ultimately decided that those living in the facilities are vulnerable, and having un-vaccinated employees is too “risky” and is unsafe.

“That’s why the government in that situation determined that the risk in long term care facilities of people not being vaccinated is too great, and therefore that they felt that they had to intervene,” he said.

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Click to play video: 'Province permits outdoor visits for LTC homes'

Province permits outdoor visits for LTC homes

Province permits outdoor visits for LTC homes

Is it ethical?

Kerry Bowman, a professor of bioethics and global health at the University of Toronto, said he is “conflicted” by Ontario’s move to implement mandatory vaccines for LTC workers.

“We cannot be in a situation where the residents of long-term care facilities could be in a situation where there’s an outbreak or they have to stay in their rooms,” he said. “This is literally their home.”

However, Bowman said mandating COVID-19 vaccination is also “very ethically problematic.”

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Bowman said while he “supports vaccinations fully,” he is “not a strong supporter at all of mandatory vaccination.”

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“If a person really doesn’t want something injected into their body (because) they’re not comfortable with it, I find it quite extreme that they would have to do that,” he said.

Setting a precedent

Samfiru said there is currently no precedent for mandating vaccination at a workplace.

The closest thing, he said, is vaccination requirements for children who attend some public schools.

“But that’s really very different than what we’re seeing here,” he said.

“I think it is a function of this being an unprecedented global pandemic that could be extremely dangerous for certain segments of the population,” he continued. “So that’s obviously what’s driving it.”

Ontario is the first region in Canada to implement mandatory vaccines for LTC home staff.

Asked if he thinks the province’s decision could set a precedent for mandating vaccines at other workplaces, Bowman said “it may,” but said those decisions will need to be made “case by case.”

“I think we have to be very careful,” he said. “I think it’s justified in the case of long term care homes (but) I’m not sure it’s justified in many other settings.”

Click to play video: '42 recommendations made after Alberta long-term care review'

42 recommendations made after Alberta long-term care review

42 recommendations made after Alberta long-term care review

However, Samfiru said there is “no doubt” that over time Canadians will see vaccination requirements in a number of sectors across the country.

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“You will also see, I expect, over time different rules and different standards applied to those that have been vaccinated and those that have not in terms of work, in terms of travel,” he said.

Samfiru said at that point, employers may be able to pressure their employees to be vaccinated.

“But right now, for an employer to say, ‘Well I’ve decided that I’m more comfortable if you’ve been vaccinated, so if you don’t you’re out of a job,’ that’s illegal for employers to say,” Samfiru explained.

However, he reiterated that the power to mandate vaccination at any workplace or office ultimately rests with government.

“This all has to be driven by the government,” he said. “They can’t pass that buck over to employers.”

By the numbers

The first wave of the COVID-19 pandemic ripped through Canada’s LTC homes and devastated the country’s senior population.

A report published by the Canadian Institue for Health Information found between March 1, 2020, and Feb. 15, 2021, more than 2,500 care homes across the country experienced a COVID-19 outbreak, resulting in the deaths of more than 14,000 residents and close to 30 staff.

According to Health Canada, approximately 20 per cent of the country’s COVID-19-related deaths have occurred in those 70 to 79, with around 65.7 per cent having occurred in those 80 or older.

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Ontario’s long-term care facilities were especially hard-hit. Since January of 2020, a total of 22,409 cases of COVID-19 have been reported in LTC facilities across the province.

In order to combat this, those over 80, as well as LTC staff, residents and essential caregivers have been eligible to receive COVID-19 shots since December 2020, when Ontario began rolling out vaccines.

In the statement Monday, the Ontario government said as of May 30, an estimated 97 per cent of LTC residents were fully vaccinated, while more than 89 per cent of staff members had received at least one dose.

However, only approximately 66 per cent of staff are fully immunized.

In a statement emailed to Global News, Sharleen Stewart, president of SEIU Healthcare — a union which represents staff in many of Ontario’s LTC homes — said vaccine requirements as a condition of employment are “nothing new for healthcare workers.”

“In many cases it is reality for more regular occurrences like the flu shot,” she said.

But, Stewart said what the employees “want in return,” is “simple and clear communication about the vaccine itself and access to supports like paid sick days should they experience adverse health effects.”

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Stewart said the Ontario government has “repeatedly broken trust with healthcare workers throughout the pandemic” by “dragging their feet on supports like paid sick days,” adding that communication from the Chief Medical Officer was “at best confusing.”

© 2021 Global News, a division of Corus Entertainment Inc.

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