PoPulationand Public HealtH etHics

of workers being absent when the facility needs them most. Second, by the
time the worker is sent home, he or she may have asymptomatically already
transmitted the virus to co-workers and vulnerable patients. 1 While it would
be least coercive for hospitals and other facilities to encourage vaccination
policies on a voluntary basis, relying on voluntary compliance and educational
programs may create gaps in patient protection, as evidenced by studies
demonstrating suboptimal uptake. 2 Facilities could take the initiative to implement
employment standards that reflect the importance of vaccination
to the health of patients. If such initiatives prove insufficient, governmental
authority may be needed to create appropriate legislation — i.e., mandatory
vaccination policies. These policies would have the effect of increasing patient
health and safety, and at the same time saving costs and reducing worker
illness and absenteeism. However, health-care workers have been resistant,
and the legality of such an option would be contentious.
When considering the legality of measures, it is apparent that the legal principles
involved are based on ethical values and that conflicts are resolved
through evaluation of the scientific evidence. Any mandatory vaccination
legislation would likely be challenged under s. 7 of the Charter of Rights
and Freedoms (the Charter). Section 7 states “Everyone has the right to life,
liberty, and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice.” Mandatory
vaccination, if considered to be a possible violation of s. 7 because it involves
an intrusion on bodily security, could be found to be justified within s. 7 of
the Charter as being in accordance with the principles of fundamental justice
particularly as it protects the sanctity of human life in a non-arbitrary manner.
Furthermore, it could otherwise be upheld under s. 1 as a reasonable and
justifiable measure to promote health, safety and confidence in the Canadian
health-care system. 3 Section 1 ensures that, where the state has compelling
and legitimate reasons to infringe rights, it has the authority to act, though
these infringements must be proportional and justified. Some of the legal
tests to ensure that this is the case are embodied in the Oakes test, based on
a decision by the Supreme Court where the standards necessary for the use
of s. 1 to limit an individual’s rights are described. According to this test the
infringement, in this case the vaccination policy, must meet a pressing and
substantial objective. In addition, the choice to vaccinate must be rationally
connected to the objective of preserving health among patients; the policy
must be minimally impairing of rights; the policy must be proportional to
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