Legal challenges brewing as deadline approaches for mandated public sector vaccinations

CALGARY -

With a deadline for mandatory vaccinations fast approaching, both Alberta Health Services and the City of Calgary still have no idea how many of their staff remain unvaccinated. At the same time it appears legal challenges are already in the works.

On August 31 Alberta Health Services (AHS) also mandated its employees and contractors be fully vaccinated by October 31.

That policy applies to all Alberta Health Services, Alberta Precision Labs, Carewest, CapitalCare and Covenant Health employees, including members of the medical staff, students, and volunteers.

The minimum interval between doses of the Pfizer vaccination recommended by the pharmaceutical company is 19 days.

In a written statement Monday Alberta Health said:

“The latest an employee could receive their second dose to be in compliance with the new policy is Oct 16, 2021, which allows for the two weeks that must pass to be considered fully immunized.”

"On the topic of how many staff remain unvaccinated AHS was unable to provide accurate numbers saying “AHS knows that the vast majority of healthcare workers are fully immunized."

"The goal of our COVID-19 immunization policy is to have 100 per cent of our active workforce fully immunized."

"AHS is in the process of confirming immunization status of our workforce in advance of the Oct. 31, 2021 deadline and over 50,000 of our staff, including medical and midwifery staff have already provided proof of being fully immunized.”

OPEN LETTER ASKS TO RESCIND MANDATORY VACCINATIONS

Meanwhile close to 3500 health care and associated workers have sent an open letter to the Alberta Health Services requesting it rescind the mandatory vaccination policy.

In  the letter the heath care workers dispute the vaccines' efficacy, claiming that “mRNA vaccines have not been proven to prevent disease uptake nor disease transmission” and “AHS’s own data shows currently approximately 25 per cent of all new cases are in fully vaccinated patients and over 18 per cent of hospitalizations are also fully vaccinated.“

AHS data shows a different story; that 87.8 per cent of cases (162,507/185,093) since Jan 1, 2021 were unvaccinated or diagnosed within two weeks from the first dose immunization date, and when it comes to hospitalization: 87.3 per cent of hospitalized cases (7,366/8,442) since Jan 1, 2021 were unvaccinated or diagnosed within two weeks from the first dose immunization data.

OVERSTEPS AUTHORITY

Nonetheless, the lawyer who sent the letter on behalf of the workers opposed to mandatory vaccination said the vaccination mandate oversteps authority.

“I think at the heart of the medical profession is the concept of informed consent. And so these physicians, nurses, first responders, health care professionals, 3500 of them have that concern," said Carol Crosson, a constitutional lawyer from Airdrie.  “There are both of course vaccinated and unvaccinated (people who signed the letter). They're very careful to share that because they all agree on this issue. And that's the issue of choice.”

Crosson pointed to section seven of the Canadian Charter of Rights as the main legal argument against mandatory vaccinations.

“It protects the right to life, liberty and security, especially when it involves fundamental choices on medical, medical issues, and that's what this is all about," said Crosson. “Every Canadian says section seven shouldn't be infringed upon when they're making a medical choice, they should be able to make it up their own free will.”

COURTS SHOULD RULE ON ISSUE: EXPERT

University of Calgary law professor Lorian Hardcastle said while there is likely to be a charter argument against mandatory vaccinations, she believes the courts will side in favour of the restrictions.

“For the most part, perhaps apart from some employers who maybe implement unreasonable policies that fail to allow medical exemptions, I think we're likely to see, by and large, these policies get upheld by the courts, just because of what's going on right now.”

The sign at the Calgary Courts Centre in Calgary, is shown on Friday, Jan. 5, 2018. Lawyers for the government of Alberta are scheduled to be in a Calgary courtroom Wednesday to ask a judge to stay a judge's order that requires it to make an immediate decision on a proposed oilsands project northwest of Fort McMurray. THE CANADIAN PRESS/Bill Graveland

“A court, though, is always going to look at whether these are proportional limits on individual rights. And in a pandemic. I think that's a fairly pressing objective that we're looking at.”

One thing both Crosson and Hardcastle do agree on is that it is the best interests of society for the courts to ultimately rule on the issue.

“ˆI would like to see charter or a charter case, because then we get the courts giving their seal of approval on it. And if there are problematic aspects the court will tell us what those are.  We will get the courts explaining why its proportional, which I think adds credibility to these policies, ones which there are people who doubt. So I think the courts actually absolutely play an important role here," said Hardcastle.

“I know some people disparage the people who bring these kinds of cases and who have challenged the public health restrictions," Hardcastle added. "But, you know, we don't want government overreach and we don't want policies that unreasonably violate the charter. So I actually think that this litigation that we'll see is certainly a good thing.”

CITY WORKERS

City workers also face a similar mandate.  On September 3, Calgary city manager David Duckworth sent a letter to all staff informing them the city would require its staff to be fully vaccinated by November first.   In the letter he said “failure to comply with this requirement will result in discipline up to and including dismissal.”

Calgary Municipal Building (file)

He also said those who require accommodation on protected grounds will be required to undergo COVID-19 rapid testing to return to their duties.

City of Calgary Communications staff told CTV the city still has not compiled the statistics on how many if its employees have, or have not received vaccinations.  Staff told CTV that the city’s official policy including the dates by which employees must be vaccinated has not yet been finalized.

However, Duckworth’s letter to staff clearly laid out a time frame by which those vaccinations must be in the arms of city staffers.

In the letter to staff Duckworth wrote:

“Please note the following important dates:

·         All City employees will be required to have their first vaccination by September 13, 2021.

·         All City employees will be required to have their second vaccination by October 18, 2021.

·         As of Nov 1, 2021, 14 days following the requirement of the second vaccination, employees will be considered fully-vaccinated.

PRIVATE COMPANIES

Many private companies have also mandated employees be fully vaccinated as a condition of employment.

Hardcastle said those people will have a more difficult time making a legal argument against the procedure.

“The charter only applies to government actions. And so if it's the government imposing a mandatory vaccine on let's say, provincial government employees, then you get into the charter, if you're talking about private businesses, there isn't that charter argument to be made," said Hardcastle.

“We could end up seeing wrongful dismissal claims, and I think we're likely to see the courts responding that generally speaking, employers can implement policies to keep to keep the workplace safe So perhaps apart from some employers who maybe implement unreasonable policies that fail to allow medical exemptions, I think we're likely to see, by and large, these policies get upheld by the courts.”

CANADIANS MORE POLARIZED ON ISSUE

Meanwhile Canadians are becoming more and more polarized on the issue of vaccinations.

A new poll conducted by Leger Canada on behalf of the Montreal-based think tank the Association of Canadian Studies, found more than 75 per cent of 1500 respondents held negative views of those who are not immunized. 

The survey found vaccinated people consider the unvaccinated “irresponsible and selfish.”

That view is contested by those who are not immunized.  An earlier poll on behalf of the same association poll suggested unvaccinated Canadians are more worried about getting the vaccine than contracting COVID-19.