This Briefing Note was completed by the Evidence Synthesis Unit (Research, Analysis and Evaluation Branch, Ministry of Health).
To examine COVID-19 immunization policies for hospitals and health care workers (HCWs).
- Two research articles were identified that support the use of vaccine mandates, with medical and religious exemptions, to protect staff and patients and reduce HCW shortages.
- A Canadian study argued that the legality of these mandates would likely be determined via labour law that considers the “reasonableness” of the employer’s directive, as is evident from case law related to mandatory influenza vaccination. Vaccine mandates may be challenged under the Canadian Charter of Rights and Freedoms, but these appeals likely will not succeed if medical and religious exemptions are made. Challengers may also argue that HCWs have the right to wear personal protective equipment (PPE) in lieu of receiving vaccination, which means that governments must support vaccine surveillance and monitor emerging evidence of the effectiveness and safety of vaccines relative to evidence of the effectiveness of PPE in reducing transmission of SARS-CoV-2.
- Two studies suggested that vaccine mandates may maximize vaccine uptake in HCWs, but risk exacerbating breakdowns in trust between them and their institutions. Instead, vaccine policies should focus on robust educational campaigns, strengthening HCWs’ trust in health care systems by addressing their concerns, and increasing vaccine access (e.g., on-site vaccine clinics, time off for vaccination).
- Evidence from vaccine mandates for influenza suggest that mandates, increased access, and increased awareness may be effective interventions to increase vaccine coverage in HCWs, while education and incentives may have limited impact.
- COVID-19 vaccine hesitancy in HCWs across jurisdictions revolve around safety, efficacy, and trust. Health systems in Quebec, the US (Texas, Indiana, Kentucky, New Jersey, and Pennsylvania), Iceland, Italy, and Victoria (Australia) have implemented COVID-19 vaccine mandates for their employees, with exemptions for medical and religious reasons. HCWs who refuse vaccination may be suspended, terminated, or transferred to duties that do not risk spreading the virus.
- Some commentators suggest that future legal cases regarding vaccine mandates are likely. For example, at Texas’ Houston Methodist, a lawsuit was filed by 117 employees to prevent the integrated hospital system from terminating unvaccinated employees.
- Some US health care institutions have opted not to mandate vaccination, partially attributed to the fact that vaccines are only FDA-approved for emergency use thus far.
Ministry of Health guidance strongly recommends COVID-19 vaccination for HCWs, but it is voluntary. An employer may choose to create their own policies regarding mandatory staff immunization as a protective measure for residents and patients.
Health care institutions can implement mandatory COVID-19 vaccination policies but may risk legal pushback and employees’ trust, so strategies focused on increasing voluntary vaccination may be an alternative consideration before implementing mandatory vaccination policies.
This section below lists and describes scientific evidence and jurisdictional experiences regarding COVID-19 immunization policies for hospitals and health care workers (HCWs).
Support for COVID-19 Vaccine Mandates
- A US research commentary (Dec 29, 2020) noted that HCWs are at increased risk of contracting infectious diseases and transmitting to vulnerable populations. Consequently, health care institutions must institute infection control protocols, and many require HCWs to receive the influenza vaccination. These institutions owe both legal and ethical duties to staff and patients to ensure a safe environment. Moreover, because vaccines prevent hospitalizations, their wide use in health care settings may reduce worker shortages. Even among HCWs, however, SARS-CoV-2 vaccine mandates could be counterproductive, given the stress of working during a pandemic. Offering non-medical exemptions could reduce HCW concerns over mandates.
- A Canadian study (Feb 8, 2021) recommended that provincial governments should put in place rules for mandatory vaccination of HCWs across all public and private settings, and should not leave this to the discretion of individual employers. The rationale for this is that vaccination will protect individual HCWs, and the patients for whom they care, from acquiring SARS-CoV-2, reducing the overall burden of COVID-19 on services and ensuring adequate personnel to minister to people’s health needs through the pandemic.
- If individual employers were to require vaccination among their staff, the legality of these mandates would likely be determined via labour law that considers the “reasonableness” of the employer’s directive, as is evident from case law related to mandatory influenza vaccination.
- Government mandates for the vaccination of HCWs may be challenged under the Canadian Charter of Rights and Freedoms, but these challenges, on the extant evidence, likely will not succeed if provisions are made for those who cannot receive the vaccination because of underlying health issues and for those who object to vaccination on bona fide religious or conscientious objection grounds.
- Challengers may argue that HCWs have the right to wear personal protective equipment (PPE) in lieu of receiving vaccination, which means that governments must support vaccine surveillance and keep abreast of emerging evidence of the effectiveness and safety of the various SARS-CoV-2 vaccines relative to evidence of the effectiveness of PPE in reducing transmission of SARS-CoV-2.
Support for Other Policies Before Implementing COVID-19 Vaccine Mandates
- A study (Feb 17, 2021) noted that mandating COVID-19 vaccination of HCWs could maximize vaccine uptake, but risks exacerbating breakdowns in trust between them and their institutions. Ethical arguments for mandating COVID-19 vaccination of HCWs appeal to their duties to ‘do no harm’ and to care for patients, but the fulfilment of these duties requires a safe working environment. The study argues for policies aimed at strengthening HCW’s trust in health care systems by addressing HCW concerns, including the institutional factors that have put them at risk of infection throughout the COVID-19 pandemic, before considering a COVID-19 vaccine mandate. Moreover, institutions should start developing vaccination policies early, beginning with robust educational campaigns to promote voluntary vaccination.
- A US editorial (June 2021) discussed some of the legal and public health policy issues related to employer-mandated vaccination. The editorial argued that rigid, coercive approaches enforced by employers could harden the opposition of individuals who are currently unsure about the vaccine. Rather than rushing to compel vaccination, employers should help educate their employees about the benefits of vaccination, and help employees, to the extent possible, get vaccinated (e.g., offering on-site vaccination, giving employees time off for vaccination).
Lessons Learned from Vaccine Mandates for Influenza
- A systematic review and meta-analysis (2016) on interventions to increase seasonal influenza vaccine coverage in HCWs found that mandatory vaccination was the most effective intervention component, followed by “soft” mandates such as declination statements, increased awareness, and increased access. For incentives, the difference was not significant, while for education no effect was observed. These results indicated that effective alternatives to mandatory HCWs influenza vaccination exist and need to be further explored in future studies.
- A review (2016) summarized that seasonal influenza vaccine uptake rate of HCWs varies widely from <5% to >90% worldwide. Perception of vaccine efficacy and side-effects are conventional factors affecting the uptake rates. These factors may operate on a personal and social level, impacting the attitudes and behaviours of HCWs. Vaccination rates were also under the influence of the occurrence of other non-seasonal influenza pandemics such as avian influenza. The review suggested that a multi-faceted approach is necessary to persuade HCWs to participate in a vaccination program, especially in areas with low uptake rate, because of the following factors:
- Different strategies have been implemented to improve vaccine uptake, with important ones including the enforcement of the local authority’s recommendations, practice guidelines, and mandatory vaccination polices. Practiced in some regions in North America, mandatory policies have led to higher vaccination rate, but are not problem-free.
- The effects of conventional educational programs and campaigns are in general of modest impact only.
- Availability of convenient vaccination facilities, such as mobile vaccination cart, and role models of senior HCWs receiving vaccination are among some strategies which have been observed to improve vaccination uptake rate.
- According to a Finnish study (Feb 22, 2021), Finland was the first European country to introduce a nation-wide mandatory seasonal influenza vaccination policy for HCWs by mandating that administrators of health care institutions only employ vaccinated HCWs. After the new mandate, the vaccination coverage of HCWs in Kuopio University Hospital increased close to 100%. The majority (57.9%) of all HCWs supported the new policy, with physicians being more compliant than nurses. 12.7% of physicians and 41.5% of nurses found the new mandate coercive or that it restricted their self-determination.
COVID-19 Vaccine Mandates
- US: As of March 25, 2021, the Food and Drug Administration (FDA) does not mandate vaccination under Emergency Use Authorizations. However, whether a state, local government, or employer, may require or mandate COVID-19 vaccination is a matter of state or other applicable law. If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer cannot mandate that the employee provide any medical information as part of the proof. Medical and religious exemptions can be implemented.
- The US Equal Employment Opportunity Commission (EEOC; May 28, 2021) noted that employers can legally require employees physically entering the workplace to receive a COVID-19 vaccine if it complies with the reasonable accommodation provisions of the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and other equal employment opportunity considerations. Similar statements were made by California’s Department of Fair Employment and Housing (Mar 2021) regarding FDA-approved vaccines against COVID-19.
- A large survey (Feb 11-Mar 7, 2021) by the Kaiser Family Foundation and Washington Post among HCWs in hospitals, assisted-living facilities, patients’ homes, and other settings found that approximately half received at least their first vaccine dose and one in six would leave their job if employers required them to get vaccinated. While individuals’ explanations for vaccine hesitancy vary, they often revolve around the three core ideas of safety, efficacy, and trust.
- Texas’ Houston Methodist (with 26,000 employees and employed physicians) became the first major integrated hospital system in the country to require its employees be vaccinated in order to help stop the spread of COVID-19 and keep patients, visitors, and colleagues safe. Those who do not comply would first have a discussion with their supervisor, then could face suspension or termination. For the first phase, as of Apr 15, 2021, 99.4% of the management team has complied. For the second phase, June 7, 2021 is the deadline for all employees to get the COVID-19 vaccine; as of April 15, 2021, more than 84% of system employees and 96% of employed physicians received at least one shot. On May 28, 2021, a lawsuit was filed by a group of 117 employees to prevent the health system from terminating unvaccinated workers.
- Indiana (Indiana University Health), Kentucky (University of Louisville Health), New Jersey (RWJBarnabas Health), and Pennsylvania (University of Pennsylvania Health System)have also implemented COVID-19 vaccine mandates for their employees, with exemptions for medical and religious reasons.
- Illinois proposed a bill to require employees at certain health facilities and departments to receive a COVID-19 vaccine if offered, while New Jersey’s proposed bill that prohibits mandatory COVID-19 vaccination does not apply to HCWs, except for those objecting based on sincerely-held religious beliefs. Oregon’s legislation prohibits employers from requiring vaccinations as a condition of employment for HCWs, unless vaccination is otherwise required by federal or state law, rule, or regulation.
- Iceland: As of May 17, 2021, HCWs can expect employers to require vaccination if there are no medical reasons for not being vaccinated (e.g., allergies). HCWs who do not receive vaccinations may be transferred internally according to the rules of each institution (e.g., from an emergency department job to a job where the unvaccinated worker is less likely to be infected by a patient with COVID-19 or to infect others). Vaccination status can also affect new hires in health care institutions. There are no rules on employers’ requirements for vaccinations in the general labour market, but the rights of people in the labour market are comparable to HCWs and other workers who are within the Icelandic trade unions.
- Italy: With an emergency decree on April 1, 2021, Italy became the first European country to make vaccination against COVID-19 mandatory for HCWs. HCWs who refuse to have the vaccine will have the option to be transferred to duties that do not risk spreading the virus or to be suspended without pay for as much as a year. Whether the decree is constitutional is still unclear, and many commentators believe that future legal cases regarding vaccination are likely.
- Australia: A study (Apr 22, 2021) noted that Australian employers of high-risk workers (e.g., HCWs) could mandate vaccination for COVID-19. Such a direction could be lawful and reasonable, excepting for those with relevant medical exemptions, for whom low-risk roles must be sought if possible. The federal government has limited but available powers to enact compulsory vaccination for high-risk workers under the Biosecurity Act. While there is variation amongst states and territories, compulsory vaccination is allowed for in Victoria and Western Australia and could be enabled via passage of specific legislation elsewhere. State-level human rights instruments and Commonwealth constitutional provisions are unlikely to invalidate a policy or regulation mandating compulsory vaccination for high-risk workers. Where employee vaccination is mandated, organizations may become liable for any adverse outcomes of vaccination.
- Victoria: As of May 31, 2021, all health and aged care staff working directly with patients or nursing home residents in the public system should be inoculated against the flu and COVID-19 in order to prevent breakouts. Workers who have not been vaccinated against COVID-19 will not be able to work. In an attempt to increase coverage, the government permits HCWs to jump the queue in state-run mass vaccination clinics.
Support for Other Policies Before Implementing COVID-19 Vaccine Mandates
- World Health Organization: A policy brief (Apr 13, 2021) identified important ethical considerations and caveats that should be evaluated and discussed by governments and/or institutional policy-makers who may be considering mandates for COVID-19 vaccination, including for HCWs. Forms of mandatory vaccination are not uncommon in health care settings, including requirements that unvaccinated HCWs stay at home during outbreaks, policies in which vaccination is required as a condition of employment, requirements that unvaccinated HCWs be transferred to settings where the risk is lower, and “vaccinate-or-mask” policies. The policy brief concluded that voluntary vaccination against COVID-19 should be encouraged before contemplating mandatory vaccination in a manner that is transparent, fair, non-discriminatory, and involves the input of affected parties.
- US: The EEOC (May 28, 2021) noted that employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Employers may also provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination.
- Health care institutions in Virginia (Sentara Healthcare) and New Orleans (Ochsner Health) have decided not to mandate COVID-19 vaccination for employees, partially attributed to the fact that vaccines are only FDA-approved for emergency use thus far. Once vaccines are fully approved, organizations may reconsider their decisions.
COVID-19 Vaccine Mandates
- In a Ministerial Order (Apr 9, 2021), Quebec became the first province in Canada to require COVID-19 vaccination and testing for certain employees. Employees are required to provide proof of a COVID-19 vaccination or undergo no less than three COVID tests per week and provide the results to their employer. The Order applies to “salaried persons” in health and social services institutions who work in the following environments: emergency units, except psychiatric emergency units; intensive care units, except psychiatric intensive care units; clinics specific to COVID-19, including screening, evaluation, and vaccination clinics; units identified by an institution as reserved for persons with a positive COVID-19 diagnosis; residential and long-term care centres; other residential units; and pneumology units.
- If any employee refuses or neglects to undergo mandatory screening tests or to provide test results or proof of vaccination, they will be reassigned to duties within their job title in another environment. Where the person refuses reassignment or reassignment is not possible, that person will not be allowed to reintegrate the work environment and will receive no remuneration until they comply.
Voluntary COVID-19 Vaccination and Reporting
- Alberta Health Services’ COVID-19 Immunization Policy (Feb 11, 2021) states that HCWs are encouraged to be immunized with the COVID-19 vaccine, when available for them. HCWs are encouraged to report their immunization to Workplace Health and Safety for reporting and outbreak management purposes.
- The Ministry of Health’s Guidance for Prioritizing Health Care Workers for COVID-19 Vaccination (Mar 17, 2021) noted that COVID-19 vaccination is strongly recommended for all HCWs but remains voluntary. An employer may choose to create their own policies regarding mandatory staff immunization as a protective measure for residents and patients.