Mandatory vaccines? Experts weigh rights of residents, staff in nursing homes

COVID-19 vaccination rates in Ottawa among long-term care home staff are starkly lower than those for residents, whose freedoms are still limited despite being immunized. Experts weigh in on mandatory vaccination programs for nursing homes, and whose rights are more important.

Vaccination rates among staff starkly lower than those for residents in Ottawa nursing homes

A loved one visits a resident of the Montfort long-term care home in Ottawa on April 20, 2020. Experts weigh in on whether a mandatory vaccination program is ethical in nursing homes, taking into account the rights of residents and staff. (Jean Delisle/CBC)

Should COVID-19 vaccinations be mandatory for staff in Ottawa's long-term care homes?

Some experts say mandating the vaccine isn't the right route to take for nursing homes, with others saying there's a case to be made about the risks outweighing people's right to choose in those settings — and there may be court cases in the near future. 

Ottawa's long-term care home residents and staff were the first to be offered the COVID-19 vaccine, in December. A CBC data analysis found the staff vaccination rate across Ottawa-area homes is at about 65 per cent. Meanwhile, about 95 per cent of nursing-home residents across the city have received shots.

Well into the city's immunization program, some residents are being confined to their rooms, after staff members test positive for COVID-19. Other residents have said their freedoms and living conditions have barely changed since being immunized because of ongoing outbreaks.

"Mandatory vaccine really crosses the line," says Kerry Bowman, who's been consulted on ethical questions in public health and teaches bioethics at the University of Toronto. "I think that people really do have a right to say what they're willing to take into their body."

Bowman says it's difficult to weigh the rights of each group, both vulnerable.

"What concerns me is a lot of [personal support workers] are already fairly low income and in great need of employment," he said.

Having said that, Bowman says, staff working in long-term care facilities have an "elevated ethical responsibility" to patients safety. He says if outbreaks continue, homes need to find another solution for residents' well-being.

"I don't define safety, well-being and security of residents as locking them in their rooms for prolonged periods of time. The question is, what's the end point?"

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Kerry Bowman, bioethics professor at the University of Toronto, says education and information is the way to fight vaccine hesitancy among personal support workers, rather than mandating vaccination.

Unprecedented, unchartered territory: lawyer

Alex Lucifero, an Ottawa-based employment lawyer with Samfiru Tumarkin LLP, says his firm has been fielding questions from employers and employees about mandatory vaccinations. 

"It is an unprecedented topic ... in the sense that there are no previously decided court decisions," said Lucifero. "This is effectively unchartered territory."

In most sectors, employers do not have the authority to, and will not be able to, mandate their employees to get the COVID-19 vaccine.

"Long-term care homes, and that's where things get interesting," said Lucifero. "I think the answer there can be different — and perhaps even, should be different."

This is a golden opportunity to help people to work together.- Janet McElhaney, professor at Northern Ontario School of Medicine 

He said that in health-care settings, it can be argued the benefits of mandatory vaccination may outweigh potential encroachment of employee rights.

"[In health-care], I believe employers will ultimately try to impose mandatory vaccination, and it will then come down to whether there are any challenges."

Lucifero said that ultimately, a court will decide whose rights are more important.

"In the context of the health-care sector, there's a decent chance that those [vaccination] programs will be found to be reasonable and therefore legal ... I wouldn't be surprised if it was the case."

A staff member at The Perley and Rideau Veterans' Health Centre long-term care home gets a COVID-19 test in late January 2021. (Jean Delisle/CBC)

Lucifero said the government has been hesitant to intervene. It would be helpful for employers and employees if the government carved out specific industries where vaccines could be mandatory — but that's not likely to happen, he said.

Should they become mandatory in some places, Lucifero said, people could still refuse on medical and religious grounds.

A short-term solution Lucifero recommends is to implement rapid COVID-19 testing in the workplace to provide a more secure environment for residents to roam safely.

Mandatory program 'destructive': prof

Janet McElhaney, a geriatrician who's spent her career studying how to make effective vaccines for seniors, said mandating vaccine programs isn't an effective solution.

"As soon as you make things mandatory, then people are finding ways where they become the exception. I think it's a destructive kind of process," said McElhaney, a professor at the Northern Ontario School of Medicine. "This is a golden opportunity to help people to work together."

She said personal support workers have been one of the most marginalized groups working in the pandemic, which put a spotlight on understaffing and high turnover in long-term care settings.

"Those are the voices we need to hear."

Instead, she suggests having a safe forum where both sides can voice concerns, discuss hesitancy and work together to find a solution — in order to "deconstruct this 'us and them' kind of world."

Minister of Heath and Long-Term Care Merrilee Fullerton had told CBC that mandating vaccination among workers isn't as easy as enforcing mask wearing or even taking medication.

"That would not be something that I, as the minister of long-term care, would do at this point," said Fullerton. "I think that we need to be educating people, encouraging people to get the vaccine. It is the very best way."

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