Since parents started considering the return of in-person learning for their children at school and university and college students have been told about vaccination requirements at their institutions, we have heard from lots of parents and students who want to know if it is necessary to be vaccinated against COVID-19 to attend school. Others have asked about whether vaccination is necessary to play league sports.
As of the date of this post at the beginning of September 2021, there is no law requiring students to be vaccinated against COVID-19 to attend a publicly funded elementary or secondary school. It is possible that this is because the vaccination is only available to students 12 and over. It may be hard for the Ontario Government, local health units, or school boards, to require the elementary students who are eligible to get the vaccine to get the vaccine when so many of their peers at the same school cannot be vaccinated at all.
However, the Immunization of School Pupils Act has been around for a long time. It is the law that requires children to be immunized against a list of diseases, such as Polio, Hooping Cough and Measles, for them to attend school. COVID-19 has not been added to the list of required vaccinations, but it could be in the future. As many parents have found out, section 12 of the Act states that a child who does not have the required vaccinations can be prevented from coming to school until he or she gets the required vaccines. The Ontario Government changed the law this year as there used to be a limit of 20 days for a child to be kept out of school. Now the period that a child can be kept out of school due to a missed vaccination is indefinite – it can go on forever. There is a process to get an exemption – it involves providing getting a doctor to provide a statement that the student cannot receive the vaccine for medical reasons. That previous version of the Act has survived court challenges in the past. As the threat posed by COVID-19 may be similar to whooping cough, measles or diphtheria, if COVID-19 vaccination were to be added to the list, it would likely survive court challenges.
In addition, Ontario’s Health Protection and Promotion Act gives both local medical officers of health and the Ministry of Health the authority to close schools or other premises, and to order people with a communicable disease to isolate, In addition, s. 22 also allows the medical officers of health to make an Order requiring the person to whom the order is directed to conduct himself or herself in such a manner as not to expose another person to a communicable disease. There are specific types of Orders that a medical officer of health can make, but they do include “requiring the person to whom the order is directed to conduct himself or herself in such a manner as not to expose another person to infection”. This is the law that some local medical officers of health felt gave them authority to require vaccine passports, and perhaps restrict where the unvaccinated can go.
In addition, during the pandemic, the Ontario Government gave Ontario Public Schools significantly more power to exclude students. “Exclusion” is the authority, under s. 265(1)(m) of the Education Act, for a school principal or another delegated member of the school staff to tell a child that he or she can no longer attend school. Previously, there were a lot of rules around exclusions that prevented them from being used to keep children from attending their schools, as doing so was something that was governed by procedures surrounding suspensions or expulsions or using the Immunization of School Pupils Act or Ontario’s Health Protection and Promotion Act. However, now the only requirement is that the child pose a risk to the welfare of anyone at the school. So, a principal could prevent a child who is not vaccinated from coming to school using this provision in the Education Act. That provision is likely to be challenged if it is used, as it has been in the past, against students with special needs. Some of those challenges are likely to be successful and create rules for exclusions. However, it is by no means guaranteed that a challenge to the use of this section in relation to excluding students who are not vaccinated will be successful. Challenging vaccination requirements will be a hard case to win.
As of yet, there have not been reported court or Human Rights Tribunal cases in Ontario challenging public health measures, such as mask-wearing or vaccination. However, there have been decisions in other provinces. Those decisions have held that human rights legislation is designed to protect disadvantaged people facing unfair barriers not imposed on others, such as the difficulties faced by people with disabilities or racialized minorities. Human Rights legislation does not protect the right of people to do whatever they want. So, as long as vaccination rules do not discriminate against disadvantaged groups, they are fine. COVID-19 vaccination policies have exemptions for people who cannot be vaccinated for medical reasons, such as a known allergic reaction or some cancer treatments. There also may be religious exemptions for members of organized religions that have long-standing rules against vaccinations, although no established organized religions currently prohibit vaccination. However, it is fair for organizations to ask for evidence in support of the exemption.
The Ministry of Education will begin to introduce a vaccination disclosure policy for the 2021-2022 school year for publicly funded school board employees, private school staff, and all licensed childcare facilities staff. Many Ontario Universities and Colleges have announced the same, requiring students and staff to show proof of vaccination. Currently, no school board has a vigorous policy for COVID-19 vaccinations for children attending school, only for their respective staff. This could, however, quickly change, pending approval on those individuals under age 12
The Toronto District School Board (TDSB) has developed a mandatory COVID-19 vaccine procedure that requires that all TDSB staff, trustees, and visitors disclose and provide proof of vaccination status and require them to be fully vaccinated. However, if you are not vaccinated, TDSB will comply with all human rights obligations to accommodate employees legally entitled to any accommodation. Those individuals will be subjected to an education on the benefits of vaccination. Similarly, various colleges and universities across Ontario are requiring those not vaccinated to attend a mandatory information session on the positives of the vaccine.
Private schools, colleges and universities can set their own policies for COVID-19 vaccination and other health safety measures unless the Ontario Government passes laws requiring certain rules for those institutions. The Ontario Government has exercised more control over private schools regarding COVID-19 than it has over any other educational. It seems likely that the rules for vaccination that are applied to public schools will also be applied to private.
Also, when it comes to these institutions, the rules are likely to favour vaccination and other public health policies. The law permits vaccination policies as long as they do not discriminate against the disadvantaged. So universities and colleges and Ontario Private Schools can require COVID-19 vaccination, as long as they offer acceptable alternatives to allow people who cannot be vaccinated (choosing not to be vaccinated is not sufficient) and can prove that inability to be vaccinated, to access to the same education as their vaccinated peers.
This leads us now to sports leagues, many of which require their participants, who be eligible to be vaccinated unless they can prove that they cannot be vaccinated. For the most part, these are private organizations and they are allowed to set their own rules, as long as they do not violate any laws, including the Human Rights Code. However, it is unlikely that vaccination policies will be deemed to be illegal unless they do not offer alternatives for people who can prove that they cannot be vaccinated. Also, Ontario’s vaccine passport laws, as currently drafted, will not allow adults access to sports facilities without proof of vaccination but there is an exception for youth recreational sports.
For parents who want their children to be involved in league sports, but do not want them to be vaccinated, if they cannot find a league that supports their views, then they may want to create their own sports organization that allows participation without vaccination. Those organizers probably should speak to a lawyer to set up their organization legally and in the most tax-efficient way possible, while also protecting the organizers from liability.
Currently, it may be possible to set up private schools where there are no requirements for students to be vaccinated. The Ontario Government is going to require private school educators to be vaccinated or provide proof of a legitimate exemption. So, when vaccinations become available to all students, the Ontario Government may impose the same requirements on private schools as it does on public schools when it comes to COVID-19 public health measures.
Another issue that has come up is what happens if the child wants the vaccine and the parent disagrees or vice versa. Everyone who has attended a vaccine clinic where the Pfizer Vaccine has been administered has seen the healthcare provider asking everyone over the age of 12 if they consent to receiving the vaccine. Under section 4 of Ontario’s Health Care Consent Act, 1996 every human person is presumed to be able to make their own healthcare decisions and healthcare providers are entitled to rely on that provision, unless the healthcare provider has reasonable grounds to believe the person does not understand the nature, benefits and risks of the proposed care. Only in unusual circumstances would a healthcare provider believe a 12-year-old did not have the capacity to consent, or refuse, a vaccine. Children of that age with serious illnesses consent to, and direct, more complicated procedures every day. When there is a disagreement between child and parent over health care, the child’s wishes govern, unless there is a good reason to believe the child does not have capacity. This makes it the child’s decision whether to get vaccinated.
As of now, students can attend Ontario public schools without being vaccinated, although the laws are in place to prevent students who pose any public health risk from attending school and that could include students who are not vaccinated and who have no proof that they cannot be vaccinated. Colleges, universities, private schools and sports leagues can all require vaccination. Challenges to those laws will only be successful when the unvaccinated person proves that he or she cannot be vaccinated for medical or well-established religious reasons and the institution has failed to offer that person alternatives to enjoy the same benefits as the people who can be vaccinated.
If you are experiencing difficulties with your child’s school, college or university, it is important to figure out what rights your child may have, and how the law might help them. Contact Education Lawyer, John Schuman, by emailing him, calling 416-446-5847, or using the contact form below. We answer all inquiries promptly and we can arrange for quickly for a consultation, which can be done virtually.
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