The COVID-19 vaccine is on the horizon.
With doses procured and new developments from Moderna and Pfizer seemingly every week, some of the most vulnerable Canadians could receive a vaccine as early as the beginning of January.
As the long-awaited vaccine roll-out becomes more reality than fantasy, a new question is setting in: will it be mandatory?
Canada’s chief medical officer Dr. Theresa Tam said in September that if we want to return to a more normal society, we need the majority of people to get vaccinated.
“Widespread vaccine uptake is the best shot Canadians have at regaining some of what we’ve lost and returning what we cherish,” Tam stresses. “Things like holding our family and friends closely, holding community events, and living our lives without fear of contracting the disease.”
By that logic we should make the vaccine mandatory, right?
Not so fast. Mandatory vaccinations carry complicated legal and political baggage. Here’s what you need to know.
Where do Canadians stand on a mandatory vaccine?
According to an October Leger poll, only 39 per cent of respondents believed a COVID-19 vaccine should be mandatory, with 54 per cent in favour of a voluntary vaccine.
63 per cent of Canadians surveyed said they would take the vaccine as soon as it was made available.
Will the COVID-19 vaccine be mandatory?
It’s unlikely the vaccine will be mandatory in any province or territory.
During a video Q&A posted to his Facebook page last week, Alberta Premier Jason Kenney said the COVID-19 vaccine will not be mandatory in his province, and he actually plans to rewrite legislation concerning it.
“COVID-19 vaccinations will not be mandatory, not in Alberta,” he said. “In fact, our government will be amending the Public Health Act early next year, when the legislature comes back. We’ll be making a number of amendments to the Public Health Act.”
Currently the Alberta Public Health Act actually states that the cabinet can order the immunization or re-immunization of persons when there is a public health emergency or epidemic. Kenney wants to change that.
A future government could reintroduce the wording to the Public Health Act if they want the option for mandatory immunization, but it would require legislation.
Just three provinces have specific legislated vaccination policies, applying strictly to children about to enrol in school. Ontario and New Brunswick require immunization for diphtheria, tetanus, polio, measles, mumps, and rubella immunization, while Manitoba requires a measles vaccination. Parents can request their children be exempted on religious, medical or moral clauses.
Ontario won’t make the COVID-19 vaccine mandatory, either.
“The premier has been very clear that he wants … the assumption that people will receive it voluntarily and that we don’t want to make it a mandatory requirement,” Health Minister Christine Elliot said this week.
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As far back as April, B.C’s chief medical officer Dr. Bonnie Henry said the vaccine will not be mandatory in her province, either.
“We have no mandatory immunization in the province and I do not expect we will have mandatory COVID-19 immunization,” she said. “Once a vaccine is available, we’ll have a strategy to roll it out across the whole province and it will be voluntary for those who want and need it.”
Why might a vaccine not be mandatory?
There are many reasons provinces are hesitant to enforce mandatory vaccination.
In a blog post, Harvard Law researchers Dorit Rubinstein Reiss and Y. Tony Yang outlined several issues with a government-mandated COVID-19 vaccine, arguing it could do more harm than good.
First is availability. With various vaccines expected to roll out in early 2021, those early doses must be allocated to those who need them most. It’s difficult to make something mandatory if it isn’t available for the entire population at the same time.
Second is enforcement. With the politicization of other mandated measures to prevent the spread of COVID-19, such as mask-wearing and business closures, the researchers argue a mandate could breed even more resistance than a voluntary vaccine would.
“The reality is that most broadly applicable mandates, unless accompanied by self-enforcement mechanisms, need some buy-in and compliance to work well,” they wrote. “A universal vaccine mandate in the face of widespread mistrust would raise real enforcement problems.”
Can a workplace enforce a mandatory vaccine?
According to Puneet Tiwali, a legal counsel at HR advisory firm Peninsula, legally in Canada, employers cannot make it a mandatory condition of employment to get a COVID-19 vaccine, but they can strongly suggest that their employees get it.
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“There is currently no legislation under which an employer would have grounds to terminate an employee for not getting a COVID-19 vaccination,” Tiwari says. “Doing this could expose a business to the risk of wrongful dismissal claims.”
Tiwari says workplaces could introduce policies encouraging non-vaccinated workers to continue working from home as a possible solution.