Federal government could push provinces on vaccine mandate for workers: document
In this file photo, the Pfizer-BioNTech vaccine for COVID-19 is prepared prior to a vaccine event at Kaiser Permanente Capitol Hill Medical Center in Washington, Thursday, Dec. 17, 2020. (Shawn Thew/Pool via AP)
The Canadian Press
Published Monday, October 4, 2021 1:10PM EDT
Last Updated Tuesday, October 5, 2021 12:08AM EDT
OTTAWA - Senior federal officials were told in the spring that the government could make it mandatory for all workers countrywide to receive the COVID-19 vaccine.
The Trudeau Liberals have promised to bring in mandatory vaccination requirements for federally regulated workers, such as those employed by transportation, banks and telecommunication companies.
Those workers account for less than one-tenth of all workers in Canada, with the remainder falling under provincial labour laws.
Although the Constitution puts public health under the purview of provinces and territories, internal documents say the federal government could consider making the COVID-19 vaccines “a national interest item.”
The next step after that would be to either work with provinces and territories on a set of guidelines, or develop their own.
The documents obtained by The Canadian Press under the access-to-information law say that such a move wasn't contemplated heading toward the summer.
It wasn't until June that the federal Liberals began hinting at a vaccine mandate for federally regulated workers, and then outlined the pledge days before the federal election campaign.
When asked recently about the pledge, which carried an implementation date of Oct. 30, Prime Minister Justin Trudeau didn't provide an updated timeline or details of what was coming.
The sequence of events has left stakeholders frustrated, and believing the Liberals only made the announcement to use as a wedge issue against the Conservatives.
The Liberals have been asked for months to co-ordinate vaccine mandates with provinces to avoid a hodgepodge of policies across jurisdictions and between businesses themselves, fuelled by differing ideas and legal opinions.
“It's very clear that you can talk to your employees about their vaccination status, encourage them to be vaccinated, but it's not clear at all that you're able to require it or terminate them if they're not,” said Dan Kelly, president of the Canadian Federation of Independent Business.
When the Liberals made their pre-election vaccine mandate announcement in mid-August, the Business Council of Canada, which represents the largest employers in the country, backed the decision, but pressed provincial and federal policy-makers to work together.
Constitutionally, the federal government can impose on provincial jurisdiction during an emergency and courts would likely be deferential to such action during the pandemic, said Martha Jackman, a constitutional law expert from the University of Ottawa.
“It would be fair to say that an exercise of federal power in relation to the pandemic or vaccines would likely also pass muster,” she said. “It's not a question of scope across constitutional authority with COVID-19, it is a question of political will.”
The head of the largest private-sector union in the country said the federal government should step in and set the rules on vaccinations for provinces and businesses to follow because some provinces have been slow to act.
Unifor president Jerry Dias said his members who work at warehouses, airports, casinos and other locations want to get back to work, but that can only happen if there are mandatory vaccination policies for employees and patrons.
“There has been a scattergun approach from province to province and that hasn't helped the situation,” he said. “The main reason that they need some sort of national guidance, some harmonized standards, is really to avoid all of this, to avoid the patchwork implementation.”
In the spring, federal labour officials were telling employers that they wouldn't “seek compliance” on any recommendations from public health officials related to vaccinations, with the documents noting the Canada Labour Code is silent on vaccine requirements.
“This position would only change should these vaccines be made mandatory under the law,” part of the documents say. The documents also suggest that challenges by workers to such a policy would be fraught because of how safe the vaccines are.
The Canadian Press sought documents prepared between March and late June for the deputy minister of labour as well as Labour Minister Filomena Tassi on the topic of vaccination rules for workers.
As part of the package were several pages of questions-and-answers, including one about whether government should set regulations to make vaccines mandatory.
“No,” the answer begins, “at this time, there are few to no arguments in favour of governments making vaccines in workplaces mandatory.”
Officials wrote that any consideration of making legislative or regulatory changes related to vaccines needed to keep in mind the constitutionally protected rights, including freedom of religion, that “protect anyone from having to be vaccinated against their will.”
This report by The Canadian Press was first published Oct. 4, 2021.