Mandatory vaccines in N.L.? Web of legal hurdles needs to be cleared first, lawyer says

As some provinces introduce mandatory vaccines for health-care workers and educators, Newfoundland and Labrador is taking a more laissez-faire approach.

'An employer is required to keep the workplace safe,' says Ryan Watkins

Some provinces are making vaccines mandatory in some sectors, while Newfoundland and Labrador is encouraging the public to get the shot. (Evan Mitsui/CBC)

As some provinces introduce mandatory vaccines for health-care workers and educators, Newfoundland and Labrador is taking a more laissez-faire approach, with one lawyer telling CBC News that the provincial government would have to navigate a complex legal web to implement such a rule.

Other provinces, as well as the federal government, have forged ahead with enforcement. In Ontario, for instance, medical workers face a strict vaccination policy; those who decline a shot without a medical reason face the prospect of continuous COVID-19 testing and an education session on vaccine efficacy.

But it's not clear such a scenario could play out here without a hitch.

Ryan Watkins, a partner with Whitten and Lublin Employment Lawyers in Toronto, told CBC Radio's On The Go there are a number of challenges a person could make, in theory, if faced with a vaccine mandate from their employer. 

Human rights legislation offers exemptions, including religion or medical reasons, Watkins pointed out.

Another challenge could be filed under health and safety legislation. 

"Those individuals could make the argument that because they are in a unionized setting and others in the union aren't required to take the vaccine that they shouldn't as well," Watkins said. 

"We've seen a number of those challenges, albeit in different scenarios. Typically in prior scenarios we've seen it with the flu vaccine."

Watkins said challenges stemming from the flu vaccine have had mixed results, where some have been successful and others haven't. 

A vaccine mandate could face charter challenges, says Health Minister John Haggie. (Patrick Butler/Radio-Canada)

He said no one is required to take the vaccine, but the difference could be employers or recreational activities such as travelling and sporting events are calling for vaccinated people only. 

"If that employer or that business requires a vaccination, it's quite difficult to see where somebody doesn't feel compelled to get the vaccination. And that's the point, right? We want more people to get vaccinated," said Watkins. 

Watkins added that most private enterprises would follow a mandate if it were government-led, with the ability to point to regulations set out by a governing body. 

Balancing individual rights, public safety

Occupational health and safety legislation could also boost the argument for mandating COVID-19 shots, however. 

Watkins said governments and employers have to ensure the safety of their workers and the public.

"An employer is required to keep the workplace safe, and that's one of the prominent mechanisms whereas employers are saying, 'I have an obligation not just to one employee but to all my employees to keep them safe,'" said Watkins. 

"Requiring a mandatory vaccination policy is one way where employers are saying, 'That's how I'm going to keep my workforce safe, so I can continue operating my business.'"

On Wednesday Health Minister John Haggie told reporters the provincial government will wait to see how the Department of Justice and Public Safety views mandatory vaccines. 

Haggie said a vaccine mandate is more of a legal and charter issue right now, but the province is watching what's happening in other jurisdictions across the country.

Some teachers in N.L. previously indicated in a CBC News questionnaire they support required vaccinations of school staff in the province.

Read more from CBC Newfoundland and Labrador

With files from On The Go

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