December 15, 2020

Author:  Robert Monti

As soon as men decide all means are permitted to fight an evil, then their good becomes indistinguishable from the evil they set out to destroy – John Locke

Vaccines are now shipping and being administered in Canada. They are projected to become widely available to the public by April 2021. Public health officials are saying the Pfizer vaccine is effective and safe. They are also optimistic that the Moderna vaccine will receive approval shortly.

Employers are now able to strategize a way for the safe physical return of some or most of their employees who have been sequestered at home. At full strength, most workplaces will not be able to maintain physical distancing. Ensuring all employees are vaccinated will be viewed as the safest option, once a vaccine is widely available beyond front-line workers.

Personal privacy, autonomy, and freedom of choice as to what goes into our bodies are fundamental underpinnings in our democratic society. Will that fundamental freedom be subordinated to safety concerns in the case of COVID?

Employers have had to balance the right and obligation to take reasonably necessary steps to maintain a safe workplace, and the employee right to privacy for decades.

 There are ample examples of courts and arbitrators rejecting employer attempts to encroach on employee privacy under the stated goal of increasing of safety. For example, the quote at the outset here is cited by an Ontario arbitrator in striking down an employer’s policy as an unjustified infringement of employee privacy.

However context matters. That case is not a vaccination case. It addresses mandatory drug testing at safety-sensitive sites such as chemical processing plants and oil refineries, not preventing disease transmission. But it is noteworthy as it stresses the fundamental importance of personal privacy at the foundation of democracy and that as privacy rights are stripped away it is even more important to require any intrusion to be demonstrable and not overreach.

In the drug testing context, the United Association v. Mechanical Contractors Association Sarnia, Local 663, illustrates the factors an employer must prove to intrude on employee privacy:

The extent to which an employer can require an employee to undergo alcohol and drug testing will depend on the degree of safety sensitivity and demonstrated (not presumed) legitimate need in the particular workplace. The evidence sufficient for the purpose will depend on the circumstances of the particular case, but it must in any event always include cogent direct non-anecdotal evidence from that workplace. The employer must also establish that the rule or policy will probably improve workplace health and safety. Uncertain or speculative health and safety gains do not justify a significant invasion of employee privacy. The resulting threshold may be a high one, but the Supreme Court of Canada in Irving Pulp & Paper, Ltd. has made it clear that that is the way it should be, particularly when fundamental individual privacy rights are in the balance.

In that case, the arbitrator quipped that the “sky is not falling” and struck down the employer’s policy.

In that specific case the employer did not have the evidence to meet the legal test stated and the arbitrator opined that the employer’s motivation appeared to business reasons rather than safety. But, in principle, the arbitrator acknowledged that safety could override privacy rights, when the balancing and weighing of interests justifies the intrusion as proportional in the specific circumstances. He cites other cases involving railway safety where policies intruding on personal privacy were upheld but does not follow them or find them applicable on the facts before him.

In the face of a worldwide pandemic with millions of fatalities (the U.S. tracking to incur more deaths than in World War II), enforced and extended isolation where people are advised to not even visit family for Christmas outside their household, no arbitrator or Court would now casually opine that the sky is not falling. The sky did fall. We are living in a changed world. The death toll of this virus and its worldwide consequences are stark and inescapable facts, the breadth and depth of which will only be understood with the benefit of hindsight.

If a vaccine offers up a safe, effective, and real possibility of working alongside co-workers and colleagues and interacting with and protecting vulnerable populations without risk of transmission or infection, employers will inevitably explore it as part of their legal duty to take all reasonable steps to provide safe and healthy workplaces. They will also consider their legal liability for negligence claims if they do not take reasonable steps to prevent foreseeable harm and legal responsibility hazards in the workplace under Occupational Health and Safety law. With due diligence and armed with the scientific and medical evidence proving the safety and efficacy of the vaccine, the risk of being told that the health and safety gains of vaccination are “uncertain or speculative” drops to minimal.

The need will be compelling in workplaces serving the elderly or the immunocompromised clients and colleagues. Condition of service vaccination policies in long-term care facilities were introduced in 1998. The COVID vaccine will no doubt be included in those. Ontario legislation also mandates a list of vaccine preventable diseases that children must received to attend school. Other settings where the nature of the work involves people congregating, such as in factories and retail establishments, will now also be reviewing the need and rationale for mandatory vaccination.

Public awareness and education about the vaccine ingredients and testing is underway. Most people trust the science and the safety protocols required by public health administrators and by our government that has purchased the vaccine. The majority will embrace the vaccine as heralding back the best chance at real rather than virtual human interaction and some semblance of pre-COVID normalcy.

Hospitals already have prior experience implementing “Vaccinate or Mask” policies during the flu season in their workplaces in the interest of patient safety. Such policies are typically grieved by the nurses’ union,  

The core objection is based on the 1993 Supreme Court of Canada decision in Re Rodriguez and Attorney General of British Columbia:

That there is a right to choose how one’s body will be dealt with, even in the context of beneficial medical treatment, has long been recognized by the common law. To impose medical treatment on one who refuses it constitutes battery, and our common law has recognized the right to demand that medical treatment which would extend life be withheld or withdrawn.”

One of the differences with seasonal flu vaccines is that efficacy varies. Sometimes the vaccine is for the wrong strain and is ineffective. The COVID vaccine is customized to the specific virus and results show more than 90% effectiveness.

Further some polls and media are noting a minority will not vaccinate and are opposed to vaccination. That minority includes the anti-vaxxers, the anti-government, anti-big corporation, the conspiracy theorists who view this as a massive scheme in exercising social control and further eroding personal liberty and autonomy over one’s own body.

There are others who are simply cautious and skeptical. They raise questions about the speed of development of the vaccine, that steps in the testing process were skipped, that the vaccine manufacturers have been guaranteed immunity from lawsuits and that already those with allergies are having adverse reactions to the vaccine.

Health Canada currently warns against taking the vaccine if you are allergic to any of the ingredients. The vaccine is also not approved for anyone under 16. It has not been proven safe in all cases. This disease is only a year old and no one can say if the vaccine will work indefinitely or whether booster does will be needed over time. Further, the long-term effects of this vaccine will only be known in time.

Federal and provincial governments have already given a clear “no” to the question of mandatory vaccination for all citizens. This vaccine will be voluntary just like taking a flu vaccine in any other year. But we will likely see access to certain settings being conditional on being vaccinated. An online poll of 1500 Canadians in October revealed only 39% of Canadians would approve mandatory vaccination. But 63% of those same respondents said they would voluntarily vaccinate.

Requiring employers to prove on case-by-case basis that safety concerns outweigh the need for consent in specific circumstances, rather than eliminating that fundamental freedom through blanket legislation sets up a well-understood process of weighing and balancing of competing rights in our post-Charter society.

The most recent indication of how the safety versus privacy balancing may unfold in controlling COVID in the workplace in the coming year is the December 9 decision of Ontario arbitrator Dana Randall. In Christian Labour Association of Canada v. Caressant Care Nursing and Retirement Home, the arbitrator upholds the employer’s mandatory COVID testing policy in the workplace. The workplace in issue was a retirement home, not a long-term care facility.

The union challenged the nasal swab testing every 14 days as invasive and led evidence that it was painful and even caused nosebleeds in the case of one employee. It relied on the drug-testing case law and submitted that there was insufficient justification for invading employee privacy rights. In weighing the competing arguments, the arbitrator concludes that the union’s reliance on drug and alcohol testing cases is only the starting point for identifying the interests in conflict. But he goes on to highlight that the policy goals of controlling COVID transmission and monitoring the workplace for intoxicants are very different. Further intoxicants are not infectious.

The arbitrator upholds the mandatory employer policy. He finds that the known risks of COVID are that it is “highly infections and often deadly for the elderly, especially those who live in contained environments.”

This one arbitration decision is not binding on other arbitrators. This decision does not consider or apply the forced medical treatment cases. Finally, although the interest balancing has the same starting point in testing and vaccination, the degree of invasiveness is much higher. A nasal swab is not the same as being compelled to inject substances into one’s body that will have anticipated and known consequences but also consequences that will only be known after we have some human experience with the vaccine over time.

The goal of safety does not always trump privacy in a general sense. If it did so, then the employers controlling safety sensitive sites or where inherently dangerous work is performed or dangerous substances are being manufactured, processed, and handled would have enjoyed complete success in upholding their drug testing policies. That has not happened.

Absent regulatory or statutory authorization, employer blanket vaccination policies that are hurriedly crafted without due diligence and that fail to demonstrate how they will improve safety, or that less intrusive safety measures should be followed first, or that there was any consideration given to balancing and protecting employee rights at all by the employer will be at risk if challenged.

When those policies are challenged, our collective experience and our accepted principles will now be re-examined in the light of a key difference today. Post COVID vaccine policies will be developed in response to a virulent disease that escalated quickly into a worldwide pandemic, leading to complete lockdowns, forced isolation and quarantine to stem transmission. We have all been told we cannot visit family, friends or interact with others in society as we did before to stay safe until we vaccinate. Some service and hospitality businesses have already shut-down due to lockdowns and restrictions. Others will go bankrupt unless they can operate as they did pre-COVID. An immunized population would allow them to return to normal operations. That sets a completely different stage for mandatory vaccination in workplaces.

The previously unsuccessful employer efforts to require drug testing in certain settings, generally did not establish or prove a specific drug problem in the workplace or show that drug use was the cause of workplace accidents. General theories of deterrence are not enough to justify intruding on fundamental personal privacy. The courts and arbitrators assessed risk and proportionate response. The proportional response to control the spread of a highly infectious and often deadly disease for the elderly may well mean mandatory vaccination in some settings.

Armed with sufficient medical and scientific proof to demonstrate the vaccine is safe and effective and will prevent disease transmission and outbreaks in congregate settings and save lives, employers should be able to justify encroaching on employee privacy and personal autonomy for the general good and in the interests of safety. Some employees will face a choice between their job or submitting to the vaccine. Although objectors may have principled reasons for doing so, the likely reaction from the majority will be to applaud their exclusion just as happens now when airlines remove people from flights who refuse to wear face masks.

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