You Can’t Make Me Get Vaccinated…Can You?

While there have always been “vaccine deniers”, or parents refusing to get their children mandatory vaccinations, I don’t think we’ve seen the degree of vehement objection as we have the protests against the Covid-19 vaccines. Yet vaccines have been proved to be the most effective way to bring the coronavirus under control. While there have been “breakthrough” cases of vaccinated people, most recent hospitalizations and deaths have been of unvaccinated people. And so the issue now is, “how about mandatory vaccinations”? Here I discuss the factors relevant to answering this question.

People who won’t get vaccinated (for other than medical reasons) may also be less likely to wear masks and more likely to engage in risky behaviour (congregate with large groups of people). And lurking behind the delay in getting control of the virus is the potential for a variant that is even more virulent than the Delta variant, which now predominates or is becoming predominant (as in Canada) around the world.

Let’s be clear about the background to this wrangling. The majority of Canadians (about 54%) have been fully-vaccinated and just over 70% have received one dose. Nevertheless, those who adamantly refuse “the jab” are endangering our ability to see the coronavirus morph into something akin to the flu: a disease we need to be concerned about, but which can be controlled with appropriate measures. Most serious cases of Covid-19, requiring hospitalization and possibly resulting in death, are now among unvaccinated people. However, even people who are fully vaccinated can contract the virus (“breakthrough” cases) and are more likely to get it from someone who is unvaccinated who has contracted it than from someone who is vaccinated.

Covid-19 is a contagious or communicable disease (as is the common cold, perhaps the most highly communicable disease). In Ontario, the Health Protection and Promotion Act (HPPA) provides a public health unit’s medical officer of health with powers to address outbreaks of communicable diseases. Other provinces have similar legislation (see, for example, Alberta’s Public Health Act; Nova Scotia’s Health Protection Act; Nunavut’s Public Health Act ( plus subsequent amendments)).

These statutes permit medical officers of health to publish orders against individuals and more broadly in response to outbreaks of contagious diseases. Many of the restrictions on our behaviour over the course of the pandemic stem from these orders, which often have been similar, but sometimes have been different (and even markedly different) across the country. In addition, emergency legislation has allowed the provinces to impose restrictions or suspend normal processes. Municipalities, too, have issued by-laws within their scope of authority, as permitted by the emergency legislation.

The closing of businesses and other entities, stay-at-home orders, requirements to wear masks in certain contexts, limitations on numbers of people who can participate in various activities and where activities can take place, and so on, all have been done under the authorization of public health, provincial and municipal orders. Now we have entered a different phase of the pandemic, one on which the onus to ensure safe conditions lies more on private entities and individual behaviour.

Now vaccines have taken centre stage, supplemented by other protocols. Many efforts and incentives (and much money) have been expended in convincing reluctant people to “get the jab”, without as great a success as desired. Countries and other jurisdictions have now turned to requiring vaccinations for certain purposes. What factors should policy makers consider in determining whether to impose mandatory vaccinations and how should they weigh them?

The following factors are most relevant and helpful in deciding whether to impose mandatory vaccinations: the context, societal benefit and harm, individual rights, minimizing limitations on rights, exceptions and alternatives. “Context” involves the institutional environment, who is affected and whether the entity seeking to impose the requirement is public or private.

People are free to require vaccinations for people to attend their own private events, such as weddings, birthday parties, Rosh Hoshanah dinners and so forth. And they have the right to ask the people on their guest lists whether they have been vaccinated and to require proof. Equally, their potential guests have the right to deny them the information or to answer “no, I’m not vaccinated.” At which point, the host may well say, “we hope we see you another time, but not this time”.

I realize these situations may be more complicated than this, depending on who the unvaccinated individuals are, how important it is that certain people attend an event and whether particularly vulnerable people will attend. Hosts may also decide not to require vaccinations and some friends may decide to forego the event because of that. Hosts may also be willing to settle for alternatives, such as a recent negative Covid test.

The point is that people are free in these situations to decide for themselves how to deal with the vaccination question. The same flexibility does not exist in more public situations. Still, these everyday events illustrate the kind of determinations that have to be made in the broader world. People (or entities) may impose requirements and those who must be vaccinated as a condition of employment, to go to a museum, enjoy a restaurant meal and a myriad of other activities are free to accept the requirement or not. However, they may find, if there are not adequate alternatives, that they no longer have a job, can’t enter a museum or must limit their eating to home (or with their unvaccinated friends).

The most obvious interrelated factors are individuals rights and societal benefits and harms.

Vaccinations are somewhat intrusive and they do have rare side effects. Some people are allergic to them or have other medical reasons for not getting vaccinated. Yet the risk of mixing unvaccinated and vaccinated people is considerable. While those who are vaccinated are less likely to become infected, they may contract the coronavirus when they come into contact with someone who is unvaccinated. The impact may not be severe, little more than a regular cold, for example. Yet should they bear even this cost?

At least some people (if not many, depending on where they live) refuse vaccinations on the basis that mandatory vaccinations are an infringement on their liberty. And they are. Others may claim a religious exemption. Just as requirements to wear seatbelts, obey traffic lights, wear shoes in restaurants, respect non-smoking laws, get typhoid vaccinations to travel to certain countries, not murder people and a host of other requirements that restrict our ability to do exactly what we want whenever we want to do it. Some of these restrictions affect mostly ourselves or perhaps the burden on the healthcare system; others are for the protection of others. Vaccines protect us from the virus and they make it far less likely that we will spread it to others.

It is trite to say that we live in a society and our own conduct must be restrained to a certain degree in order to take into account its impact on others. With the numbers of people currently unvaccinated, it is difficult to end restrictions completely or even mostly (although this seems to be the path England is taking).

The societal effectiveness of vaccines relies at least in part on whether there can be any control over exposure of vaccinated people to those who have not been vaccinated and, of course, over the exposure of unvaccinated people to each other. We need to remember, too, that children under 12 cannot be vaccinated (yet?) and they need to be protected, as well. And a more virulent virus, perhaps prowling in the wings of the unvaccinated, that runs rampant may threaten those who have been vaccinated.

There are therefore two aspects to societal benefit or harm from widespread vaccination or lack of it: the impact on unvaccinated and vaccinated people and the broader impact on whether the society can “open up” to the degree desired.

Weighing the societal threat and individual freedom to reject vaccines leaves society vulnerable to the latter. Thus mandatory vaccines can be justified. However, for a variety of reasons, there may be exceptions to vaccine requirements based on the circumstances I mentioned above. Accordingly, vaccination mandates usually provide alternatives or accommodations to the requirement. In Ontario and elsewhere in Canada, these accommodations will be determined by the context to which the mandate applies.

Ontario requires that staff, student placements and volunteers in long-term care homes be vaccinated (with alternatives provided) (see here and here).

The Ontario requirement for vaccinations for workers in long-term care homes permits workers to select one of two alternatives to providing proof of vaccination: provide evidence of a medical reason the person cannot be vaccinated or “Participate in an educational program about the benefits of vaccination and the risks of not being vaccinated”. However, the policy does not state whether there are consequences if the individual still decides not to get vaccinated after attending the educational session; sitting through an educational session appears to be a substitute for getting vaccinated, although of course education in itself does not prevent the spread of the coronavirus. This is similar to the alternatives to mandatory vaccination for children before they can attend school. (Any mandatory vaccination requirement government imposes may be subject to challenge under the Canadian Charter of Rights and Freedoms, as well as human rights legislation.)

France, Greece and Italy have instituted mandatory vaccinations for persons working in health care or with vulnerable persons and to a lesser extent, as has the United Kingdom (see here and here) and the Department of Veterans Affairs in the United States (see here).

Health care workers obviously work with vulnerable patients, whether in long-term care or in hospitals. However, private employers more generally have obligations to ensure the workplace and workers are safe. Employers have obligations under the Occupational Health and Safety Act (in Ontario and in corresponding legislation elsewhere in Canada) to maintain a safe workplace. Among specified responsibilities is the more general section 25(2)(h): “the employer shall…take every precaution reasonable in the circumstances for the protection of a worker”.

Private employers may require vaccinations in order to protect workers and, if applicable, others who frequent their business, but this does not impose an obligation on employees to be vaccinated if they fall within an exemption and can be accommodated or if they choose to leave their employment.

When employees refuse to be vaccinated, the employer may provide alternate work arrangements so that the employee does not come into contact with others. The employer has a legal obligation under human rights legislation in Canada to accommodate the employee on protected grounds, including disability (a medical exemption) and religion. In unionized workplaces, the collective agreement may contain relevant provisions that must be satisfied or the union and employer may be able to agree on an arrangement. The goal is to take action that results in the employee not posing a risk to others. This may mean the employee may be allowed or must work remotely. Where that is not possible, regular Covid testing and/or masks or other personal protective equipment may satisfy the safety requirement. But if none of these are feasible in the context, it may be that the employee will no longer be able to work in that entity.

(For a brief reference to US employers and to issues arising in the Canadian context, see this GlobalNews report. It is also worth comparing an arbitration upholding an employer’s requirement for Covid-19 rapid testing. Although testing and vaccinations are not necessarily analogous, some of the analysis is relevant and the parties agreed that the employer’s right to institute the policy under the management rights clause of the collective agreement had to be reasonable: the arbitrator concluded that “COVID spread remains a threat to the public at large and those working at [the employer’s] construction sites. When one weighs the intrusiveness of the rapid test against the objective of the Policy, preventing the spread of COVID-19, the policy is a reasonable one.” (Ellisdon Construction Ltd. v Labourers’ International Union of North America, Local 183, para. 45))

Private entities have another factor to consider: the impact of requiring customers to be vaccinated. The government no longer requires private businesses to close or staff and customers to wear masks; these measures were generally accepted, although there were those who fought them. Now it is up to individual entities or their head offices to decide about mandatory vaccinations. Gyms provide one example of how the situation has changed.

For different periods, gyms have been required to close, then allowed to open with restrictions on numbers. Now gyms are making decisions themselves about safety measures. Thus some are announcing people will not have to be vaccinated to use their facilities, while others have taken the opposite position. Gyms have become one of the battlegrounds of the division between those who are committed to vaccinations as the “way out” of the pandemic and those who are antithetical to vaccines. Gyms are just one example, of course, many businesses are in the same situation.

I refer to gyms as an example because one chain quickly became the target of complaints when it answered a question on Twitter by saying it would not require vaccinations (see “GoodLife Fitness sparks debate after saying it won’t require proof of COVID-19 vaccination“).

One attempt to communicate about businesses whose staff are fully vaccinated and that required vaccinations quickly abandoned the effort when it and businesses on the list were attacked online (see CBC story on website listing businesses whose staff are vaccinated or requiring proof of vaccinations and follow-up here).

In addition to health care, other contexts raise specific issues. Currently, depending on the jurisdiction, employees and shoppers may be required to wear masks and shoppers are expected to maintain a safe distance from other shoppers and employees. Policies related to employees would be similar to any employer. It would be up to individual stores (or the policy of head office where there is a chain of stores) whether they would require people to be vaccinated before they could enter the store. While a store owner or manager could ask a shopper whether they are vaccinated, if the shopper refuses to say, the owner could refuse entry. This is similar to the mask requirements that currently exist. However, given how long people are in stores and how much contact they have with each other, store owners may not want to address the challenges that might arise with a mandatory vaccination policy.

Theatres, art galleries, restaurants and pubs and similar businesses can institute mandatory vaccination policies. In doing so, they would need proof of vaccination. They might prefer to use mask wearing, distancing measures and the like rather than require vaccinations. Customers can refuse to answer or provide proof of whether they have been vaccinated and the theatre can refuse to sell them a ticket. Again, customers can choose whether to attend the theatre or go to the art gallery; however, they may well want to know what measures these entities are taking to keep them safe.

Associations representing industries may also make it easier for the individual enterprise to require vaccinations. For example, an association representing 500 bar owners in San Francisco (the SF Bar Owner Alliance) has instituted a vaccination requirement for patrons who want to sit inside the bar; those who do not provide proof may sit outside.

I note that private entities in Ontario, as well as other jurisdictions, are subject to human rights legislation. Patrons who refuse to be vaccinated because of medical or religious reasons who are not allowed to enter the theatre or restaurant may file a human rights complaint.

Some countries have taken the matter out of individual entities’ hands. Policies include steps other than mandatory vaccination, but considered equivalent to vaccination. For example, in France, in August, people will have to show a “covid pass” that shows the holder is either fully vaccinated or has recently tested negative for COVID-19 in order to enter restaurants, museums, theme parks, festivals and other kinds of places considered aspects of a “social life” (see CBCnews story here). They apply where more than 50 people would be present. (France has a lower vaccination rate than does Canada.) Greece has also instituted a mandatory vaccination policy for indoor activities, lasting until August (see here).

Of course, vaccination policies can have a limited life, applying only to a certain date. But the vaccination itself is not limited, although if conditions improved sufficiently, perhaps policies would not require booster shots. As things stand now, however, this effort to minimize the impact of the policy is not realistic, since not continuing to apply the requirement could lead to a resurgence of the virus.

Individuals do have the right to refuse a vaccine. There is no requirement in Canada or elsewhere for people to be vaccinated against their will. However, where vaccine requirements exist, there may well be consequences for failing to get vaccinated. The coronavirus is a contagious disease and variants, such as the current Delta variant, have been more easily transmissible than the original version. The societal interest in protecting its members therefore looms large. As a result, restraints on individual’s freedom to accept a vaccination are acceptable.

In some contexts, it is clear that the restraints must meet certain criteria, such as whether the lack of a vaccination can be accommodated. In other contexts, where the decision to take advantage of whatever the individuals wants to enjoy is purely optional, one might view the restraint as less onerous. The nature of the reason for not getting vaccinated will also matter; those who simply do not want to be vaccinated have little merit to their claim. Regardless, under these circumstances, in the unusual situations where efforts to accommodate the individual claim are not feasible, the equation must fall on the side of societal protection. (Here the number of objectors may be relevant.)

The threshold answer to the question in the title of this post is simple: under certain circumstances someone can indeed require you to get vaccinated. For your part, you can refuse to comply or to provide proof, but if you do, you risk losing the opportunity to enjoy some of the benefits opening up society will provide — or even risk losing your job.

Comments

  1. For those professions and businesses relying on pursuing, continuing and strengthening relationships with clients and other business associates it will be interesting to see what policies if any are developed by these entities in the matter of social and business gatherings. For instance, will law firms require clients to provide proof of vaccination in order to attend a face to face meeting or social/business gathering? Will staff be required to be vaccinated? Will each have a different policy or will there be a uniform approach? Or, will everyone return to what was “normal” etiquette or routine at such events?

  2. David Collier-Brown

    From a public-policy standpoint, this is a no-brainer: you do not have the right to recklessly endanger others.

    In law, this has legitimate shades of grey, but the bottom line is that if my employer wished to see me die for their personal benefit, I would take _serious_ exception.

    For the record, they don’t: I have a rather brilliant and civilized employer. People with other employers? They may wish to seek legal advice (:-))

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