If you contract COVID as a result of a person who is wilfully unvaccinated, do you have the right to sue your bosses, coworkers, a school, or even health-care workers?
As the drumbeats of a Delta-driven fourth wave become more audible, an argument is being made that those who refuse vaccination should face fines, loss of benefits such as employment insurance, increased rates for life insurance, and personal liability if it can be established that their behaviour resulted in the hospitalization or death of others.
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“Choices have consequences. Personal responsibility matters,” writes Arthur Caplan, founding head of New York University School of Medicine’s division of ethics, and Dorit Reiss, a law professor at the University of California’s Hastings College of Law.
“Want to reject expert opinion and the established facts about COVID and put yourself and others at risk? Then you should pay, if your choice harms others.”
Others argue that it can be exceedingly difficult to confidently trace a COVID-19 infection back to its source, and that while someone who transmits an infection to others may be held liable if they act negligently — for example, if they take a risk that could reasonably be expected to harm another — refusing a COVID shot does not constitute negligence in and of itself.
Caplan is well aware of the counterarguments to holding non-vaccinators accountable: There is no evidence that a fine will sway people who are adamantly anti-vaccine, and many have argued that people respond better to carrots than sticks. However, Caplan asserts that he has abandoned incentives.
“We tried them, and they didn’t work.”
You should pay, if your choice harms others.
Scientists warn that it may take vaccination rates nearing 90% of the total population to halt a fourth COVID wave, implying that everyone currently eligible for vaccination would need to be fully vaccinated.
Caplan argues that if an unvaccinated person infects and hospitalizes another, lawsuits should follow, “just like when somebody doesn’t adequately protect their pool with a fence or cover their well with a lid.” Unvaccinated individuals may be held liable for medical expenses, lost wages, and “declining earning capacity”.
Non-vaccinators are exacerbating the pandemic by increasing the risk of new variants emerging and endangering others, including children under the age of 12 who cannot be vaccinated, as well as those with immune disorders or cancer who may not have a robust immune response to vaccines, Caplan and Reiss wrote.
They asserted that liability should not be imposed on individuals who are unable to receive vaccinations due to medical conditions, advanced age, or a lack of access.
“Nor does it mean those who suffered vaccine failure are liable.”
Individuals who have received all vaccines may still contract “breakthrough” infections and spread the disease. They are, however, “meaningfully different” from people who voluntarily refuse the shots, they said, just as someone who runs a red light is distinct from someone who attempts to stop but is struck from behind and pushed into an intersection.
“If you make a sincere effort to follow public health guidelines, you are not liable. If you flout them and harm others you ought to be liable,” Caplan said.
The same holds for the vaccinated. The shots aren’t foolproof.
“We’ve been spending months — here, in Canada, in many parts of the world — trying to figure out how to protect the rights of the unmasked and the unvaccinated,” he said. “There are a lot of politicians, in Alberta, in Florida, in Texas, who continue to say we have to really make sure we don’t force or coerce anybody. They have their freedom. It is a simplistic and flat-out stupid interpretation of freedom, and it has the moral valence all wrong.”
People are free to control what happens to their bodies, Caplan said.
“No one has proposed, and I’m not, sending the vaccine police to your house to force vaccination on you and your family.”
But freedoms come with responsibilities, obligations and duties, he said.
“There are all sorts of freedoms, and they impact when they offend or restrict the liberty of others.”
He believes choosing not to vaccinate could meet a necessary degree of negligence, if the person is wandering around and not acting in a reasonable way.
“If you make a reasonable effort to be prudent, then I think, OK. You still might infect somebody, but that’s different.”
Primary and secondary schools owe a high duty of care to children, similar to the duty that a parent owes a child. Caplan believes parents would have grounds to sue an unvaccinated teacher, or the school if a child was infected with COVID and harmed.
“Who would say, in the middle of a plague, round up 30 kids who can’t be vaccinated, put them in a small room and sit them all day with an unmasked and unvaccinated teacher?”
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There are “a whole bunch of reasons” why people aren’t vaccinated, said McGill University law professor Richard Gold.
“If you’re being misled, or don’t have proper information, or there has been historic discrimination against you or you don’t simply really have access, because you can’t take time off work if you get a bad reaction, then I’d be hesitant to impose personal liability,” Gold said.
“First we educate and we do everything we can. I do worry about the equity of it.”
The evidence issue — proving who gave a person COVID — may not be as difficult as some think, he said. “If we have a good idea of the identify of the person who infected us, we can test the virus in that person’s body and our own infection. Given the virus undergoes constant mutations, we can determine if the strain with which I was infected is the same as the infected person’s.”
Still, Gold thinks it would be more appropriate to go after institutions, not individuals, and that the largest risk is to institutions like universities, where there is a known and significant risk of infection.
“The standard of care is emerging strongly in favour of vaccine mandates,” Gold said. Universities that don’t meet that standard are increasingly at risk of legal liability, he said.
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