On September 14, 2021, the Ontario Ministry of Health (the “Ministry”) released a guidance intended to assist physicians and nurse practitioners in evaluating circumstances that may warrant a medical exemption from vaccination against COVID-19 and documentation of a medical exemption (the “Guidance”). While the Guidance is not legally binding and does not take the place of medical advice, diagnosis or treatment, employers that have implemented mandatory vaccination policies may refer to the Guidance for assistance as they assess requests for accommodation based on medical need.
The Guidance identifies four categories of circumstances that may qualify an individual for a medical exemption to vaccination:
- Pre-existing conditions, defined in the Guidance as 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”;
- Contraindications, defined in the Guidance as a “situation where a vaccine should not be given as the risks outweigh any potential therapeutic benefit”;
- Adverse events following immunization against COVID-19, defined in the Guidance “as any untoward medical occurrence which follows immunization, and which does not necessarily have a causal relationship with the use of a vaccine”; and
- Active receipt of monoclonal antibody therapy or convalescent plasma therapy for the treatment or prevention of COVID-19.
We have set out further details regarding the Guidance below.
Possible Medical Exemptions to Vaccination
Pre-Existing Conditions
The Guidance provides that the following pre-existing conditions may qualify an individual for a medical exemption to vaccination, subject to specific requirements:
- Severe allergic reaction or anaphylaxis to a component of a COVID-19 vaccine: An individual with this condition is only qualified for a medical exemption if the allergy was documented and evaluated by an allergist or immunologist, a discussion about potential options for immunization with the same or alternative COVID-19 vaccine occurred, and the allergist or immunologist has determined that the individual is unable to receive any COVID-19 vaccine.
- Myocarditis prior to initiating an mRNA COVID-19 vaccine series for individuals aged 12 to 17 years old: Individuals aged 12 to 17 years old who have a history of myocarditis unrelated to mRNA COVID-19 vaccination should consult their clinical team for individual considerations and recommendations. Individuals previously diagnosed with myocarditis, whose diagnosis is considered remote and are no longer followed by a medical professional for cardiac issues should receive the vaccine. A medical exemption may be issued only if discussion has occurred with a relevant specialist regarding potential options for immunization with an mRNA COVID-19 vaccine or alternative, and the specialist has determined that the individual is unable to receive any COVID-19 vaccine.
Contraindications
The Guidance states 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”. The following contraindications may nonetheless qualify an individual for a medical exemption to vaccination if an mRNA COVID-19 vaccine is contraindicated for that individual:
- Capillary leak syndrome;
- Cerebral venous sinus thrombosis with thrombocytopenia;
- Heparin-induced thrombocytopenia; or
- Major venous and/or arterial thrombosis with thrombocytopenia following any vaccine.
The Guidance provides that individuals who have experienced the contraindications identified above should refrain from initiating an AstraZeneca or COVISHIELD vaccine series and be offered an mRNA vaccine instead. A medical exemption may be issued only if an mRNA COVID-19 vaccine is contraindicated for the individual.
Adverse Events Following Immunization Against COVID-19
The Guidance provides that any individual who develops any of the following adverse events following receipt of a COVID-19 vaccine may qualify for a medical exemption to further vaccination, subject to specific requirements:
- Severe allergic reaction or anaphylaxis: Individuals who have had a severe allergic reaction to a previous dose of a COVID-19 vaccine should not routinely be offered a COVID-19 vaccine of the same vaccine platform. A medical exemption may be issued if discussion has occurred with an allergist or immunologist on potential options for re-immunization with the same or alternative COVID-19 vaccine, and the allergist or immunologist has determined that the individual is unable to receive any COVID-19 vaccine.
- Thrombosis with thrombocytopenia syndrome (TTS)/VITT following the AstraZeneca or COVISHIELD COVID-19 vaccine: Individuals who have experienced a major venous or arterial thrombosis with thrombocytopenia following vaccination with AstraZeneca/COVISHIELD COVID-19 may be offered an mRNA COVID-19 vaccine for subsequent immunization. A medical exemption may be issued only if they have a medical exemption to completing their series with an mRNA COVID-19 vaccine.
- Myocarditis or pericarditis following a mRNA COVID-19 vaccine: Individuals with a diagnosed episode of myocarditis and/or pericarditis after receipt of their first dose of an mRNA COVID-19 vaccine should defer their second dose until more information and guidance is available. The individual may qualify for a medical exemption if a relevant specialist has determined that the individual is unable to receive any COVID-19 vaccine.
- Serious adverse events: Individuals who experience a serious adverse event following receipt of a COVID-19 vaccine, such as an event that results in hospitalization, or persistent or significant disability/incapacity, should be medically assessed by a relevant specialist, and the event should be reported to their local public health unit. The Guidance provides that there are very few serious adverse events that would result in a medical exemption to COVID-19 vaccination. Nonetheless, an individual may qualify for a medical exemption if a relevant specialist determines that the individual is unable to receive any COVID-19 vaccine after the event has been medically evaluated, and a discussion has occurred on the individual’s risks and benefits of potential options for immunization with the same or alternative COVID-19 vaccine.
Active Receipt of Monoclonal Antibody Therapy or Convalescent Plasma Therapy
The Guidance states that individuals actively receiving monoclonal antibody or convalescent plasma therapy for the treatment or prevention of COVID-19 disease may qualify for a time-limited medical exemption to vaccination during the period in which they are actively receiving therapy. Vaccines may be administered to these individuals once therapy is discontinued.
Documentation
The Guidance provides that documentation of a medical exemption must be provided by either a physician or a nurse practitioner, and clearly indicate the reason why the individual cannot be vaccinated against COVID-19. 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.
Employers should continually monitor for updates regarding medical exemptions to vaccination, as recognized by the Ministry and other public health authorities, to ensure continued compliance with their duty to accommodate employees and patrons under the Human Rights Code. As always, we will post further updates as they become available.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.