Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On September 14, 2021, Ontario’s Ministry of Health released Version 1.0 of Medical Exemptions to COVID-19 Vaccination (Guidelines).1 The purpose of the Guidelines is to assist physicians/specialists and nurse practitioners in evaluating circumstances that may warrant a medical exemption from COVID-19 vaccination. Although intended for those in health care, the Guidelines provide useful information for employers that have implemented their own mandatory vaccination policies and find themselves faced with evaluating an accommodation request based on a claim of entitlement to a medical exemption.
The circumstances referred to in the Guidelines as warranting a medical exemption are:
- A contraindication, i.e., a situation where a vaccine should not be given as the risks outweigh any potential therapeutic benefit; and
- A precaution, i.e., a condition that may increase the risk of an adverse event following immunization or compromise the ability of the vaccine to produce an immune response, which may result in deferral of immunization.
The Guidelines specify that, “In general, there are very few actual contraindications to available COVID-19 vaccines that would qualify as medical exemptions and most individuals can safely receive COVID-19 vaccines.” They state further that, “True medical exemptions are expected to be infrequent and should be supported by expert consultation.”
The Guidelines provide that the following may qualify as medical exemptions to COVID-19 vaccination, subject to applicable qualifications being met, and provided an alternative COVID-19 vaccination is not recommended, as set out in the tables on pages 3-6 of the Guidelines under the heading “Management”:
- Pre-existing conditions such as severe allergic reaction or anaphylaxis to a component of a COVID-19 vaccine, or myocarditis prior to initiating an mRNA COVID-19 vaccine series (individuals aged 12-17 years old);
- Contraindications to initiating an AstraZeneca/COVISHIELD COVID-19 Vaccine Series (the rollout and administration of first doses have been paused since May 11, 2021), such as history of capillary leak syndrome; history of cerebral venous sinus thrombosis with thrombocytopenia; history of heparin-induced thrombocytopenia; or history of major venous and/or arterial thrombosis with thrombocytopenia following any vaccine;
- Adverse events following COVID-19 immunization, such as severe allergic reaction or anaphylaxis following a COVID-19 vaccine; thrombosis with thrombocytopenia syndrome (TTS)/VITT4 following the Astra Zeneca/COVISHIELD COVID-19 vaccine; myocarditis or pericarditis following a mRNA COVID-19 vaccine; or serious adverse event following COVID-19 immunization (e.g., results in hospitalization, persistent or significant disability/incapacity); and
- Actively receiving monoclonal antibody therapy OR convalescent plasma therapy for the treatment or prevention of COVID-19.
Documentation that Must be Provided to Obtain an Exemption
The guidelines provide that the documentation of a medical exemption must be provided by a physician or a nurse practitioner (i.e., a registered nurse who holds an extended certificate of registration under the Nursing Act, 1991), and clearly indicate the reason why the individual cannot be vaccinated against COVID-19 (i.e., clear medical information that supports the exemption). The documentation must include:
- Name and contact information of the physician or nurse practitioner;
- Logo or letterhead identifying the physician or nurse practitioner;
- Statement that there is a medical reason for the individual’s exemption from being fully vaccinated against COVID-19; and
- Any effective time period for the medical reason, which includes the date the patron is seeking access to the business or organization.
Bottom Line for Employers
Any employer with a mandatory vaccination policy that is faced with evaluating an accommodation request based on a claim of entitlement to a medical exemption, is encouraged to consult the Guidelines.
The evaluation of any accommodation request should be based on an understanding that, as stated in the Guidelines:
- Only a few medical exemptions from mandatory COVID-19 vaccination exist;
- Any medical exemptions that may be available are listed in the Guidelines;
- The medical exemptions listed in the Guidelines will only be available if applicable qualifications are met, and an alternative COVID-19 vaccine is not recommended; and
- In the case of one possible medical exemption, its availability may be time-limited.
Employers are encouraged to seek the assistance of experienced employment counsel in evaluating accommodation requests based on claims of entitlement to medical exemptions.
1 On September 23, 2021, the College of Physicians and Surgeons of Ontario updated its COVID-19 FAQs for Physicians, which refers to the Guidelines.