What hospitals and other healthcare facilities need to know about patients exempt from COVID-19 vaccination requirements

Paula Trattner, Aislinn E. Reid, Emilie Dillon, and Amanda Arella are the authors.

Sep 28, 2021

Directive #6 under Section 77 issued by the Chief Medical Officer of Health on August 17, 2021 By September 7, 2021, healthcare facilities that fall under Section 7 of the Health Protection and Promotion Act) (the Vaccine Directive) must have implemented COVID-19 vaccination policies for their employees, staff, contractors, students, and volunteers. [1] The Vaccine Directive was previously summarized in an Osler Update.

Many Covered Organizations have implemented mandatory vaccination policies requiring all employees and professional staff to be vaccinated, despite the fact that the Vaccine Directive does not mandate such vaccinations. Covered Organizations have determined that mandatory vaccination is necessary to protect patients, staff, and visitors, and to enable continued delivery of healthcare given the unique risks and obligations of Covered Organizations generally and during the COVID-19 pandemic.

Medical documentation or a legally recognized exemption under the Ontario Human Rights Code (the Code) may be used to gain exemption from vaccination requirements. Covered Organizations should follow these procedures when evaluating requests for human rights and medical exemptions, as the scope of these exemptions is likely to be narrow.

For reasons of health

There will not be many cases of people not getting the COVID-19 vaccine because of medical reasons. To be exempt from getting the COVID-19 vaccine, a person must have a medical reason that can be proven. According to recommendations published by the College of Physicians and Surgeons of Ontario (CPSO), the risks of getting vaccinated against COVID-19 are outweighed by the benefits.

  • severe allergy or anaphylaxis confirmed by an allergist or immunologist to any component of the COVID-19 vaccine or to a previous dose
  • Myocarditis and pericarditis were identified as causes of hospitalization following administration of an mRNA vaccine.

The CPSO has also stated that doctors should not be required to provide exemption documentation if the patient requesting the exemption does not have a valid medical reason for the exemption due to the current pandemic situation. [2]

All requests for medical exemptions should be carefully considered by Covered Organizations, and supporting documentation should be required. Covered Organizations may require supporting documentation from a specialist physician for medical exemption requests due to the low prevalence of conditions warranting exemption from the COVID-19 vaccination. In addition, Covered Organizations should think about the duration of any medical exemptions they provide.

Guarantees of human rights

In cases where a person is not able to be vaccinated due to a reason that is covered by the Code, they may be eligible for an exemption from receiving the COVID-19 vaccine. [3]

Requests for religious exemptions to vaccination requirements under the Human Rights Act will predominate. Creed in the Code can refer to both religious and nonreligious beliefs that have religious overtones. A person's professed religion must, among other things, have ties to a larger group with a similar set of beliefs. A person claiming a religious or moral exemption from vaccination for COVID-19 must provide verifiable evidence that their faith forbids them to get vaccinated. Vaccination against COVID-19 has been strongly recommended by many respected religious leaders and public health officials. Furthermore, an exemption cannot be justified on the basis of a person's preference or philosophical objection to vaccination. The Ontario Human Rights Commission made a policy statement on September 22, 2021, which read: "while the Code prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code." ”

Responsibility for making accommodations

A Covered Organization may not be able to grant a request for an exemption from mandatory vaccination even if the individual provides a valid reason under the Code. Vaccination is a crucial measure to reduce the spread of COVID-19 and ensure that healthcare services can continue to be provided in Covered Organizations, which are higher-risk settings and serve vulnerable populations.

The Ontario Human Rights Tribunal and courts have not yet addressed the duty to accommodate in the context of mandatory vaccination policies. The duty to accommodate may be limited, according to the Ontario Human Rights Commission, if doing so would pose an undue hardship due to, for example, a pandemic. Any evaluation of Covered Organizations' obligation to accommodate exemptions from mandatory vaccination should take into account the unprecedented nature of the COVID-19 pandemic and the unique importance of healthcare organizations to the public health response.

In addition, a recent Ontario decision regarding visitor access during the ongoing COVID-19 pandemic, which we discussed in a previous Update, should provide comfort to hospitals and healthcare organizations. The hospital's "enormous expertise and specialized knowledge" in using its discretion during a pandemic was acknowledged by the court. [4]

Covered Entities should evaluate human rights exemption requests to determine if they can be granted.

  • Think long and hard about whether or not helping the applicant would cause undue hardship. It is important to respond to requests and examine any relevant paperwork. For the sake of future verification, it is recommended that this procedure be recorded. [5]
  • be ready to provide evidence that meeting the request for an exemption would impose an undue burden. The degree of danger and the people who are exposed (e. g , for frail patients) are relevant to the question of whether or not there is an undue burden

You can consult with the Osler Health Advocacy Team for advice on mandatory vaccination policies, evaluation of exemption requests, and resolution of disputes arising therefrom. Paula Trattner or Aislinn Reid can be contacted for details.

Directive #6 for COVID-19 Vaccination Policy in Health Settings, Ontario Ministry of Health, August 17, 2021 [1]. For more information, check out the Resource Guide.

[2] On September 27, 2021, a physician was given practice restrictions by the CPSO Inquiries, Complaints, and Reports Committee, which prevent him from, among other things, granting medical exemptions for COVID-19 vaccinations and face masks. The doctor has been referred for discipline because of his communications, including those on social media and other digital platforms, about the COVID-19 pandemic and related issues, which allegedly constituted unprofessional conduct and a failure to maintain the standard of practice. During the recent COVID-19 pandemic, our earlier Osler Update detailed the risks and considerations of public commentary by physicians.

Race, ancestry, place of origin, color, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity and expression, age, marital status, family status, and disability are all protected grounds under the Code.

Case #4: Sprague v. Crown of Ontario, 2020 ONSC 2335, Her Majesty the Queen in Right of Ontario

The case of Kittmer v. In Ontario, Canada, Shepherd Gourmet Dairy Inc. paras. 67 and 84 of Case No. 2019 HRTO 1445

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