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

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

Some experts say mandating the vaccineisn't the right route to take fornursing 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 casesin 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 CBCdata analysisfound the staff vaccination rate across Ottawa-area homesis at about65 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 beingconfined to their rooms,after staff memberstestpositive for COVID-19. Other residents have saidtheir freedoms and living conditions have barely changed since being immunized because of ongoing outbreaks.

• Vaccinated care home residents confined to rooms after workers test positive

"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 withSamfiru 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."

Lucifero saidthe government has been hesitant to intervene. Itwould 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 providea 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, saidmandating 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, aprofessor at the Northern Ontario School of Medicine. "This is a golden opportunity to help people to work together."

She saidpersonal 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 hesitancyand work together to find a solution in orderto"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."