Are vaccine mandates reasonable?
A Q&A with Canadian social scientist Dionne Pohler
Over the past few months, I’ve heard many concerns about vaccine mandates voiced privately, but very little public debate on the issue in Canada. (Though the tide is now turning, with Norman Doidge’s excellent opinion piece this weekend in The Globe and Mail.)
To my view, mandating a medical intervention represents a major change in our society and requires robust discussion — particularly when it’s tied to people’s livelihoods.
Some questions to consider: Are workplace mandates likely to withstand legal challenges? Are they logical? Can they be defended with scientific evidence?
To address these questions, I reached out to an expert in the field. Dionne Pohler is a social scientist, and an associate professor at the University of Saskatchewan Edwards School of Business. Pohler’s research covers labour and employment, organizational governance, and public policy implementation, and she argues that the mandates may not hold up. Here, she explains why.
Let’s start with exactly what vaccine mandates in Canada are. For people who may not be familiar, explain what they cover.
There’s a lot of different kinds of vaccine mandates. The ones that I have been thinking about most are the ones that organizations implement, that require broadly all of their employees, sometimes even customers — at universities, students — to be fully vaccinated to access the premises. Some vaccine mandates might have other policies where unvaccinated workers or customers can show results for rapid antigen tests or a PCR test. In those cases, I consider them less mandates and more vaccine requirements. … People have also discussed vaccine passports as a form of vaccine mandates. Those have generally been introduced by governments as public health restrictions that restrict the ability of the unvaccinated to enter certain kinds of businesses. … It’s really the employer mandates that I think about when I talk about vaccine mandates.
What’s the precedent on this issue in the workplace so far?
There isn’t necessarily a precedent. In the U.S. and in Canada, in the wake of both federal elections, there was a lot of discussion and debate around vaccination, and a politicization of the vaccines led to people talking more about them. Post-elections, a lot of employers brought in these mandates and other employers copied it. … So, the precedent has really just been about public opinion, and employers responding to government restrictions or requirements, or else copying other organizations.
There have never really been widespread mandates like this introduced in organizations. The closest we have is the mask mandates that were introduced in health care in places like Ontario, where hospitals were requiring nurses to wear a mask if they weren’t vaccinated against influenza. In 2015 and 2018 there were a couple of major labour arbitration decisions that decided that those policies were overly coercive and unreasonable. Both because the flu vaccine was not that effective at preventing spread of infection, and also because it was an overly coercive policy. If somebody was wearing a mask it could signal that they weren’t vaccinated and there were all of these issues arising from those kinds of situations.
COVID-19 has shifted the context in which mandates are determined to be reasonable or not. Some people think that COVID-19 is unprecedented and it’s nothing like the flu. And, of course, early on, the initial evidence that the pharmaceutical companies were sending out was that these vaccines were 90-plus percent effective at preventing the spread of infection. So, I think a lot of employers were using health and safety legislation as the justification for implementing these, because it would protect the health and safety of other people in the workplace. These mandates are just starting to work their way through labour arbitration decisions, and to some extent through the courts in the more non-unionized settings. So, we’re still feeling out whether these mandates will be upheld as reasonable.
That reasonableness qualification is interesting — as it seems like labour arbitrations are one of the few forums where the logic of vaccine mandates will be put to the test. Walk me through what “reasonable” means in the context of Canadian arbitration.
It’s something that is referred to as the KVP test, and there’s a set of conditions that place limits on management’s rights to set policies. The factors that have to be considered are the nature of the interests that are at stake, whether there’s less intrusive means available to achieve an objective, the impact of the policy on employees, whether or not the policy is inconsistent with the collective agreement, whether it’s been implemented consistently over time. And that’s been a question about these vaccine mandates, because of course they changed over time. Initially they weren’t as restrictive or coercive, and became more so, even as evidence was mounting that the vaccines weren’t that effective at stopping the spread of infection. A policy is not just considered reasonable because an employer thinks it will do good; it really should be supported by solid evidence that this policy is necessary, especially the more invasive it is.
A lot of employers are making the case that the vaccines are the best way to stop the spread of variants and protect the health and safety of workers in the workplace. But there’s not a lot of evidence that that is, in fact, the case. The evidence is increasingly becoming more strong that [the vaccines] are a decent preventative medical intervention — that you as an individual won’t experience severe illness or death.
One of the interesting arguments that people have put forward is: “We are in a deadly pandemic and hospitals are overwhelmed. By employers putting in place these policies, it will help a stressed healthcare system.” But it is not the role of individual employers to exercise their power over workers to try and meet some broader public health objective. That should fully be within the realm of elected government officials and not individual employers.
If the argument for vaccine mandates is predicated on the assumption that the vaccines stop transmission, if they do not stop transmission, how does that impact reasonableness?
That’s core to the argument. Prior to COVID, the evidence that was brought forward in the influenza vaccine mandate cases was really around the efficacy of both masks and the influenza vaccine at stopping infection. Because there was such contested scientific evidence around both, it wasn’t clear that either were very effective ways of reducing the spread. … I think that is a critical point. If the vaccines are not effective at stopping infection, then I think most of the employer’s arguments about protecting the health and safety of other workers in the workplace fall apart. In my opinion, that argument was always weak. Most employers that I know introduced the more coercive vaccine mandates in the fall, after we knew early evidence from Israel, which was a highly-vaccinated country. There was good evidence out of Israel that vaccines waned in efficacy very quickly, if they ever were as effective as the pharmaceutical companies claimed. (As an aside to that, there is a big conversation that needs to happen around access to the randomized control trials. The data has not been seen by anyone other than the pharmaceuticals. They own the data.)
… Now I think Omicron has basically obliterated any belief we had that the vaccines were effective at stopping spread.
Let’s move on to the question of potential harms. I’ve been looking at the adverse events data for the vaccination rollout in Ontario. We know that adverse effects are rare, however according to a recent report, there have been 17,346 reported incidents, 978 of which are deemed serious. There have been 636 reports of myocarditis and pericarditis. If there is any risk of bodily harm, how does that impact the coercion argument?
In my personal opinion, that is the reason why there should never be coercion. I think the way that we have to approach it is that all drugs cause harms. Even in the real-world data, it becomes really hard to tease out what the risk-benefit trade off is. You could possibly do a risk-benefit trade off for the population as a whole, but for a specific individual only that individual and their doctor can assess their risk from COVID and their risk from the vaccines, given the data, taking into account their age, fitness level, comorbidities. For me, universal mandates implemented by employers, especially when we know that there are certain groups that have higher potential for adverse consequences [from vaccination], and those groups tend, because of their age, to face lower risk of severe outcomes from COVID — that is another reason why these universal mandates are so problematic. You, as an individual, might decide you want to take the risk of one or the other. And that should be your choice.
I’ve put that question to experts in the past: if this comes down to a risk-reward analysis, how come we can’t do that for ourselves? The response has basically been that it’s a complicated analysis, that officials are responsible for the entire population, that there’s a background rate of medical incidents that they have to compare everything to. So, it gets quite complicated and nuanced. What do you say to that?
I think that’s true. I think that all of these things are quite complicated and nuanced. Public health can give guidance and they can give the best advice and recommendations that they can to the population as a whole. And doctors can follow that guidance and advice. But I think there’s this idea that people don’t know what’s good for them. I think that when it’s something that’s really important, and people care about the decision, that they actually do take the time to learn about it. And they do have a good sense for themselves of what is the right way to go. … As soon as that guidance becomes coercive, I think that’s when you undermine trust and you get some backlash. And that’s when you get people making bad decisions, because they are now reacting to something that is not just about what’s in the best interests for their health — or even the health of other people. I think the harms of coercion outweigh the benefits. … These things are complex but as soon as we start assuming that people cannot make the best decisions for their own health, we go down a dangerous path.
A lot of the workers now being mandated to get vaccinated are the same workers who were on the frontlines for much of the pandemic. Many got sick and would have natural immunity. How do you navigate that as you unpack reasonableness?
That’s another piece. The science that I have read does show that natural immunity has some durable protection against severe illness later. I’m not an epidemiologist, I’m not a virologist, but I’m going to assume that that’s true as there is a lot of studies that have shown this. The thing that confused me was why that was not built into policies.
And this is an equity issue. Early in the pandemic, there were a lot of low-income workers that lost their jobs. But research I did with a PhD student showed that there was this group of low-income workers that were working more, and they were more likely to be working outside the home. And these workers were at much higher risk of exposure. … Many of those workers got exposed to COVID and got COVID. This is one of the reasons that Toronto had such spread early on, because many of those workers live in multigenerational homes, and they were working in those kinds of jobs, like in Amazon warehouses, meat-packing plants, that had many of the early outbreaks. So, with the introduction of the vaccines, many people were making the argument that they had already had COVID and what was the necessity of getting the vaccine? None of the natural immunity information was brought into these policies. I do know of people who have claimed natural immunity and have been denied an exemption from their employer. So, that I think is another aspect of what makes these policies unreasonable: evidence that is being ignored.
I think that the reasonableness of a policy will also require continued adaptation to the emerging evidence … in labour arbitration decisions and eventually court decisions. If a worker gets fired in the Canadian context for one of these policies they would have to sue their employer in court — if they don’t have access to a union — for wrongful dismissal. And there it’s a just cause requirement, so you’d have to show gross misconduct on the part of the employee. I don’t think being not willing to get a vaccine is going to meet that bar.
Lastly, there are two reasons why you and I might choose not to even have this conversation. You’ve already dispensed with one of them: that we might lead people astray on the issue of vaccination. You’ve already said we have to trust the public. The second issue is that talking about this publicly could stigmatize one or both of us. How do you navigate that?
For the record, I am fully vaccinated. There are three things that I think are important. One is that it’s sad it ever became politicized, as opposed to being seen as an individual medical choice. [Second,] I now approach this as I would the abortion debate. People have deeply held moral positions. So, I have tried to avoid arguing it based on the morality or the ethics of it. Looking at the evidence, taking apart the arguments for the vaccine mandates, is I think where you have your strongest footing — questioning the rationales that are put forward, the narratives that are put forward to justify the mandates. [Thirdly,] a person can talk about the benefits of vaccination, public health can talk about the benefits of vaccination, and your employer can talk about the benefits of vaccination, while at the same time, putting in place health and safety policies that meet the objectives that they want to meet, in a way that is less coercive and less invasive.
This interview has been edited and condensed.