Unvaccinated Quebec caregivers in court seeking access to long-term care homes

A Quebec judge is expected to rule by Monday whether a provincial health order that prevents unvaccinated caregivers from entering nursing homes to care for relatives should be suspended.

A Montreal lawyer was in court Wednesday contesting the order on behalf of caregivers who, since late December, have been barred from entering long-term care homes and other seniors' residences because they are not vaccinated against COVID-19.

Amid rising cases due to the Omicron variant, the provincial government issued a decree in December tightening rules in care settings, including an order that requires caregivers to show proof of vaccination before they can enter facilities.

Lawyer Natalia Manole, representing about 80 caregivers and residents, argued the government should revert to the previous rule, which required caregivers to present negative results from tests taken within the previous 72 hours.

She is seeking to have the decree immediately suspended through an injunction and to have an eventual judicial review of the health order.

Manole argued that if unvaccinated health-care workers are able to work in the facilities provided they test negative, caregivers should be afforded the same right. The lawyer also noted that in certain instances, health workers have been allowed to stay on the job after testing positive for COVID-19, working with the same vulnerable clientele.

The situation is urgent, according to Manole, as four of the residents who had signed sworn statements in recent weeks have already died.

"One day for us is like a year for them,'' Manole told the court.

Manole said the situation resembles the first wave of the pandemic, when caregivers were cut off from their family members in long-term care. But this time, most of the vulnerable residents are fully vaccinated and have received a booster shot.

François-Alexandre Gagné, a lawyer representing the Quebec government, said the government recognizes the importance of caregivers, but it is dealing with an evolving global pandemic and is seeking to strike a balance.

Gagné said provisions already exist that would allow those who are unvaccinated to seek an exemption, something that should be done on a case-by-case basis at the facility.

"Obviously, the government took this decision, rightly or wrongly, put forth this measure on Dec. 22 in the public interest, in the interest of public health and in conformity with the Public Health Act,'' Gagné said.

Last fall, Manole represented a legal challenge by health workers challenging Quebec's attempt to require vaccination for health-care workers in the province. Ultimately, the province abandoned that plan in November, saying the impact to the health network of removing unvaccinated workers would be too grave.

Manole said caregivers are partners of the health network, often helping residents eat, walk and stay clean. Her clients are asking Quebec Superior Court to declare assistance provide by caregivers an essential service.