Table 2:

Canadian legal cases related to condition-of-service policies for influenza vaccination of health care workers

Condition-of-service policyArea of law
Employment lawHuman rights codesCanadian Charter of Rights and Freedoms
May not work during facility outbreak*In all but one case, policies are lawfulNo relevant casesWhere applicable§, cases have been divided on whether such policies violate the right to liberty and security of person (section 7)
Vaccinate or maskPolicies are lawfulLawful if the policy provides exemptions for creed and disabilityWhere applicable§:
  • No violation of the right to liberty and security (section 7)

  • Possible violation of the right to freedom of expression (section 2b), which would be justified by section 1

Vaccination requiredPolicies are lawfulLawful if the policy provides exemptions for creed (no cases related to disability)No relevant cases
  • * “May not work during facility outbreak” policies require workers who are not vaccinated against influenza to not work in a health care facility during a declared facility outbreak of influenza (decisions (42) (46)).

  • Vaccinate-or-mask policies require unvaccinated health care workers to wear a mask while in areas where patient care is provided or patients may be present during the winter or influenza season (single decision (47)).

  • Vaccination-required policies require that workers be vaccinated against influenza annually if they wish to work for the facility or agency (3 decisions (48) (50)).

  • § The charter applies to government policies. Whether the charter applies to health care facility and/or agency policies is a complex legal question and is addressed in the main text.

  • Section 1 of the charter specifies that charter rights may be limited if it can be shown that the breach is reasonable and demonstrably justified.