Unvaccinated healthcare workers terminated for refusing to obey government pandemic orders won’t be returning to work anytime soon in British Columbia.
British Columbia’s Supreme Court has upheld provincial health officer Dr. Bonnie Henry’s mandate requiring COVID vaccinations for healthcare workers, a mandate she extended last fall.
Fifteen healthcare workers filed an appeal to have the public health orders dismissed on constitutional and other legal grounds.
This group, including a nurse practitioner and two doctors, argued against the mandatory vaccination policy, contending that it caused undue hardship to the workers and the healthcare system in their absence. They argued that unvaccinated healthcare workers posed no greater risk to patients than their vaccinated counterparts.
The petitioners also included those who worked remotely or held administrative roles, asserting that their inclusion in the mandate was unreasonable.
“Approximately 1,800 healthcare workers had lost their jobs due to being unvaccinated contrary to these mandates,” read the decision.
Justice Simon R. Coval, in his detailed judgment issued last Friday, sided with Henry and upheld the vaccination requirement. He emphasized the continued necessity of the mandate, given the risks posed by COVID to both public health and the healthcare system.
Coval found the public health orders reasonable, given the information available to Henry as of Oct. 5, 2023, when she extended the vaccine requirement initially put in place two years earlier.
He supported the government’s conclusions that transmission of the virus posed a significant health risk and justified the ongoing use of the emergency powers, and that an unvaccinated healthcare worker constituted a “health hazard,” as defined by the Public Health Act.
However, the court did find merit in the argument regarding healthcare workers who perform their roles remotely or in non-patient-facing capacities. Coval directed Henry to reconsider the mandate’s application to these workers.
“There was a lack of justification in the record or Orders to support as reasonable the decision not to consider requests for reconsideration of the vaccination requirement from healthcare workers able to perform their roles remotely or in-person but without contact with patients, residents, clients, or the frontline healthcare workers who care for them,” wrote Coval.
The court also addressed the Charter challenges raised by the petitioners. While the court acknowledged that the mandate infringed on the religious freedoms of some petitioners, Coval deemed this infringement “reasonable in the circumstances because… it did not exceed what was necessary to achieve the essential public health objectives of protecting vulnerable patients, residents, and clients from serious illness and death.”
The court found that the orders did not infringe on the Charter rights of those who refused vaccination based on personal convictions, rather than religion.
“These personal perspectives did not rise to the level of constitutionally-protected matters of conscience,” said Coval.
The ruling also stated that the public health orders did not infringe on petitioners’ section 7 Charter rights.
Section 7 states, “Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
“The Orders did not compel them to accept unwanted medical treatment, and so did not interfere with their bodily integrity or medical self-determination. Further, under the case law, s.7 protects neither the right to work in any specific employment or particular profession, nor the right to avoid the stress and hardship of being denied employment in a profession due to non-compliance with its governing rules and regulations,” wrote Coval.
The judge dismissed the petitions, with the exception of asking Henry to reconsider the vaccination requirement for healthcare workers able to perform their roles remotely or in-person without coming into contact with patients, residents, clients, or frontline healthcare workers.
