Episode 10: Mandatory vaccinations – Legal implications

24 septembre 2021 | Tracey M. Bailey, KC, Annie Alport

( Disponible en anglais seulement )

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Tracey Bailey: I’m Tracey Bailey.

Annie Alport: And I’m Annie Alport.

Tracey: We’re part of Miller Thomson’s national health law team. And today we are going to be discussing mandatory vaccination policies, a topic on everyone’s minds these days. And one that we, together with many of our colleagues across the country, have been busy providing advice on. We’ve had so many requests for advice and information on this – from clients in every sector: governments, health organizations, regulatory bodies, health professionals, businesses and so many others. So today, we are going to chat briefly about who can implement orders or policies, whether that’s under legislation or through other means, how – how can those policies orders be implemented and on what basis may they be challenged.

Annie: And we’re going to follow up soon with some discussion on some of the details in different sectors, so for example considerations for employers, whether unionized or not, some occupational health and safety as part of that, and then some further discussion about human rights and constitutional issues.

Tracey: But first it’s important to understand what we mean by the mandatory vaccination policies or orders. What are we talking about implementing or not implementing? Are we talking about implementing in Canada actual forced vaccinations? Annie, can you describe a bit more what we’re going to be talking about today.

Annie: Definitely, so you know there’s a lot of talk about mandatory vaccines and it’s almost a bit of a misnomer to be honest. We’re not talking about forcing vaccination. We’re not talking about physically forcing individuals to get vaccinated. There are laws that enable governments to force treatment or immunizations, but that’s not what we’re talking about here today and typically not what we’re talking about when we’re talking about the term mandatory vaccines. What we’re talking about is vaccinate or face certain restrictions or consequences if you are not vaccinated. So in the employment context it might be get vaccinated or go on unpaid leave. Or if we’re talking about government mandated vaccines as we’ve just seen introduced in Alberta for example, provincially, it’ll be you need to get vaccinated or you may not be able to attend certain public venues or that sort of thing, so that’s what we’re talking about. Tracey, can you talk a bit about what that means practically, so what does it mean from a legal perspective to actually implement such policy?

Tracey: Well thanks, Annie, that’s important, right? If we’re going to implement a policy, whether that’s a health organization or an employer decides to implement some kind of policy or they’re forced to because of the government or public health official order in certain provinces, one of the things they’re going to be able to need to do is collect personal information from people about their vaccination status. Have they been vaccinated on, do they have one vaccine or two, you know. How long ago was it, you know, as time goes by.

There’s no point implementing an order or policy if you can’t actually enforce it. And so a key legal question is whether there’s actual legal authority to request information from people. Whether you’re an employer of staff at a hospital, for example, or you’re employing staff at your local restaurant, your small business – do you actually have the legal authority to ask people for their vaccine status and what kind of information can you request? So it depends on the type of organization you are, whether there’s legal authority you can soundly rely on and important to know what you can request and have people voluntarily give you or not. And then of course it’s not only important to ensure that you can actually collect the information you need to implement something like this, but how you collect that information is very important.

Annie, maybe you can speak a bit more about that.

Annie: So at a very high level, when we’re talking about this – collecting this type of information – there is legislation that will apply to these different bodies that are collecting this information and so it’s privacy legislation, there’s federal legislation, there’s provincial legislation and it’ll depend on what type of organization is collecting the information as to what piece of legislation applies. You know, there might be the Freedom of Information and Protection of Privacy Act which applies to public bodies and then in Alberta we have a provincial piece of legislation, the PIPA we call it that applies to private actors and then there’s other provinces that don’t have legislation for private actors and so in that case the federal legislation applies. And then within those statutes and then the regulations and stuff under them, there are different rules about how you can collect, how you can store or safeguard that information, how you can use it and how you can disclose it.

Tracey: Yeah, and that’s going to vary across the country, isn’t it? ‘Cause of course if federal legislation doesn’t apply, whether we are in BC, Alberta, Saskatchewan, Ontario, Quebec, etc. we’re going to have different pieces of legislation applying in each case. So important to know what legislation you’re under and how it affects you and how it affects implementation, if you are forced to or choose to implement such a policy.

Annie: Now one thing that is definitely a hot topic of conversation these days is, you know, what’s coming down the pipe. There are going to be legal challenges to these vaccine mandates. So Tracey, why don’t you speak a bit about what type of challenges we might see?

Tracey: Yeah, the type of challenges, Annie, might depend of course on, it will depend on the specific order of policy in question. So what province are we in and is this something being implemented like in BC where we’ve got the provincial health officer under British Columbia’s public health legislation issuing an order that applies to certain healthcare settings for example or are we talking about government implementing something through legislation or are we talking about employers or other kinds of organizations like health professional colleges, etc. thinking about implementing a policy on their own, so it’s going to really depend on looking at the specific order and the specific policy and the legislation that they fall under. But for some of those organizations, let’s use that BC order as an example, an order issued by a public health official under legislation is going to be potentially subject to Charter challenges and that’s one of the things that you and I will discuss a bit more in an upcoming podcast of ours. But that’s one source of potential challenges for those government bodies or other organizations that actually fall under the Charter, because of course not everybody does, right?

If you’re an employer who’s not subject to the Charter, you’ve got to be thinking about human rights legislation and complaints that can be made under that legislation on certain protected grounds. So depending on the province you live in those grounds, the wording of that’s going to vary a bit but think about grounds like medical or physical or mental disability, religious freedom or in some provinces the issue of gender that might affect for example pregnant women. It can also of course be challenged on a lot of other grounds including was there legal authority to issue or implement the order of policy in the first place. So that’s not always what we hear about when we hear this thing discussed in the news, but we always go back to think about – was the law there actually supporting the implementation of this order or policy and that’s a really important issue. And of course, we’re going to see probably a lot of other types of challenges, Annie. Think of litigation or potential injunction applications, you know, think of all of the challenges that could be made on that front.

Annie: Absolutely and that’s something we’ve actually seen throughout the pandemic as these public health restrictions have been put in place there have been all sorts of legal challenges, so you know, there’s Charter challenges for example or people seeking injunctions either to you know, strike down restrictions that have been put in place or to seek an exemption to them so there have been, for example, religious groups that have brought challenges against measures prohibiting gatherings for worship and have sought injunctions on that basis and I certainly expect to see similar sorts of things and you know, we’re going to talk at length in another podcast about the Charter, but just to throw out there a couple of sections that might apply, there might be section 2 so that’s freedom of expression, freedom of religion, section 7 – life, liberty, security of the person, and then section 15 of course which ensures equal treatment for all. So those are just some of the legal challenges we expect to see.

Tracey: Yes, so stay tuned. In some of our upcoming podcasts we’re going to be talking about the Charter. We’re going to be talking more about human rights implications and we’re going to have some of our colleagues join us to talk about specific issues related to employment, collective bargaining, and occupational health and safety.

Annie: Thanks so much for joining us.

Tracey: Thanks.

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