Jennifer O’Dell of Lerners LLP and Lidiya Yermakova of Lenczner Slaght LLP moderated the panel discussion with speakers Sari Feferman of Rosen Sunshine LLP, Anna Matas of Gillian Hnatiw & Co., and Meghan Cowan of Aird Berlis LLP. All addressed key issues and provided practical and up-to-date advice to legal professionals advising their clients on the challenges posed by COVID-19 pandemic.
Sari Feferman on the use of social media by health professionals to discuss vaccines
During the first part of the program, Sari Feferman spoke to attendees about the use of social media by health professionals to discuss vaccine-related sentiments. Sari’s discussion highlighted the importance of health professionals remaining mindful of their obligations and the applicable guidelines from health colleges surrounding advertising and posting online. Most regulatory health colleges view posting on social media to be a form of advertising. Generally, they require information posted on social media by health professionals to be accurate, factual, verifiable, comprehensible, dignified, in good taste and balanced in tone. Sari also referenced pre-pandemic examples of health colleges stepping in when members were posting online in both a personal and professional capacity.
Before the pandemic, health professionals used social media to express positions on vaccines or vaccine resistance, and Colleges have offered guidance on this topic in the past. Sari noted the example of the College of Chiropractors of Ontario’s Professional Advisory on Vaccination and Immunization from March 2019, in which members were reminded not to publish information about vaccination on their websites or social media accounts, as it was not within their scope of practice to do so.
A College’s mandate is to protect the public, and this extends to anything that may impact or undermine public safety. Sari noted for attendees that COVID-19 was recognized as a global health risk, and the general sense is that vaccine hesitancy and resistance poses a significant risk to the public. Information spread by a member online that is scientifically false or beyond a member’s expertise will risk intervention by a College.
The line for when something breaches a member’s obligations and/or justifies College intervention is not a bright one. General advice for health professionals would be to stay in line with Public Health messaging, however this advice may vary depending on the facts of the situation. Some of Ontario’s regulatory colleges have already intervened in matters involving posts made on social media by members related to COVID-19 vaccines. One example included a decision from the College of Physicians and Surgeons of Ontario (“CPSO”) to issue a caution to a physician who was providing unsupported statements that a COVID-19 vaccine is not necessary, on the basis that it posed a risk to the public to make these statements during a pandemic. Additionally, the College of Nurses of Ontario recently initiated an investigation surrounding a nurse’s posts online about vaccines being lethal and COVID-19 being a conspiracy. Further, the CPSO recently referred a physician with a large online following to the College’s Discipline Committee on allegations that he made misleading, incorrect or inflammatory statements online regarding the COVID-19 pandemic.
Legal professionals guiding health professionals on how to navigate their online presence should advise their clients that there is currently no clear or bright line on when a College will investigate social media posts. Health professionals should keep in mind their responsibility to convey information to the public that is factual and supported by evidence.
Anna Matas on vaccine exemption requirements for health professionals
In the next part of the program, attendees had the opportunity to hear from Anna Matas about vaccine exemption requirements. Anna began the discussion by identifying that physician and nurse practitioners are the only regulated health professionals in Ontario who are permitted to provide exemptions for COVID-19 vaccinations. These professionals must provide written exemptions which include their name and contact information, as well as the reason why someone is permitted an exemption from being fully vaccinated, and any limits to that exemption.
Physicians and nurse practitioners may only issue these exemptions in limited circumstances which have been outlined in the Ministry of Health. These circumstances include where there are contraindications or precautions to someone receiving the COVID-19 vaccination. The Ministry of Health has issued a document called “Medical Exemptions to COVID-19 Vaccination” which outlines these circumstances in greater detail and places them into four different categories:
- Pre-Existing Conditions;
- Contraindications to Initiating an AstraZeneca/COVIDSHIELD COVID-19 Vaccine Series;
- Adverse Events Following COVID-19 Immunizations; and
- Actively Receiving Monoclonal Antibody Therapy OR Convalescent Plasma Therapy for Treatment or Prevent of COVID-19.
Anna noted that these categories are limited and require very specific support if an exemption will be issued.
With respect to human rights-based exemptions, Anna advised that no regulated health professionals should provide human rights-based exemptions. The Ontario Human Rights Commission (“OHRC”) has confirmed that it is okay to require proof of vaccination to protect people at work or when receiving services as long as protections are in place to ensure that people unable to be vaccinated for Code-related reasons are reasonably accommodated. Receiving vaccines is voluntary but those who choose not to be vaccinated do not have protection under the Code. The OHRC has issued guidance that no singular belief against vaccines or masks amounts to a creed within the meaning of the Human Rights Code. Health professionals who may provide exemptions to COVID-19 vaccination do not have the appropriate tools in their capacity as health professionals to make an exemption based on creed, it would be outside the scope of their practice to make an exemption on this ground.
Health colleges are taking steps to regulate their members who are issuing mass exemptions for vaccines and mass masking/testing exemptions. Anna referenced two cases where physicians faced interim orders from the CPSO prohibiting them from issuing medical exemptions for vaccines for COVID-19, for mask requirements for COVID-19, and for testing. These physicians were required to post signs in their practice spaces identifying these practice restrictions.
Regarding best practices for communicating with patients who are vaccine-hesitant, Anna suggested that health professionals be aware of their scope of practice for their profession. All regulated health professionals receiving questions about vaccinations should speak to patients about their own limits on their scope of practice and try to connect their patient with a trusted healthcare professional who can safely discuss the pros and cons of vaccination with that patient. All healthcare providers would be well-served to carefully document any advice given to patients in this regard.
Meghan Cowan on mandatory vaccination policies for Ontario healthcare workers
Closing out the program, Meghan Cowan discussed the status of the law surrounding mandatory vaccination policies for Ontario healthcare workers. Meghan began her discussion by informing attendees about the general vaccination policy requirements in Ontario. Meghan noted the mixed case law from pre-pandemic or early pandemic times regarding masking and vaccination policies, in which policies with respect to vaccination and masking had been struck down.
However, there was a subsequent shift in sentiment in the summer of 2021 towards implementing vaccination policies. On August 24, 2021, the Ontario government amended the roadmap steps requiring any open business to operate in compliance with the advice from Public Health officers. In Toronto, this resulted in a requirement that employers have a vaccination policy. This coincided with the announcement on August 17, 2021 from the Chief Medical Officer of Health, who issued a directive under the Health Protection and Promotion Act, also known as the “vaccine directive,” which required all hospitals and healthcare organizations to implement a COVID-19 vaccination policy. Vaccination was not mandatory by virtue of this directive, but many hospitals chose to make COVID-19 vaccination mandatory to protect patients and ensure the continued delivery of healthcare services.
More recent developments have included a requirement from the Chief Medical Officer of Health that all high-risk settings (i.e. post-secondary institutions, licensed retirement homes, congregate group homes, etc.) have a vaccine policy, to take effect by September 7, 2021. These policies required that all relevant individuals governed by the policy either provide proof of vaccination, proof of exemption, or undertake an education session. Additionally, recently, all in-home staff, support workers, students and volunteers at long-term care homes are now required to be fully vaccinated (e.g. two valid doses of an approved COVID-19 vaccine). This took effect as of December 13, 2021. Those staff who are not fully vaccinated will not be permitted to enter a long-term care home to work.
Meghan noted two recent decisions dealing with mandatory vaccination policies in workplaces. In the October 29, 2021, decision of Blake v University Health Network, an injunction, which temporarily suspended the termination of certain non-unionized UHN employees who refused to be vaccinated or comply with UHN’s vaccination policy, was dissolved. This case did not decide whether terminating an employee for refusing to be vaccinated would constitute “termination with cause.” The Court also declined to comment on the validity of the mandatory vaccination policy itself.
In the November 9, 2021, decision of United Food and Commercial Workers’ Union, Canada Local 333 and Paragon Protection LTD, an Arbitrator dismissed the union’s policy grievance challenging the mandatory vaccination policy as violating the collective agreement and upheld Paragon’s mandatory vaccination policy. Of note, the collective agreement contemplated requiring vaccines.
When asked about best practices for a vaccine policy, Meghan’s advice was simple - have one. She noted that when dealing with accommodation requests from employees, there will be narrow and limited grounds where accommodation will be required. Employers are required to accommodate reasonable requests. It is up to employers to consider requests, and it is important for employers to investigate requests further as necessary. Meghan reminded attendees that personal preference or singular beliefs do not amount to a creed, an enumerated ground under the Human Rights Code, for which discrimination is prohibited.
Thank you to the OBA Health Law Section Executive, our panelists and moderators who contributed to this invaluable program. Stay tuned for more programming from the OBA Health Law Section in 2022.
This article was first published in the website of the Ontario Bar Association.
Nicole Fielding is an Associate Lawyer at Koziebrocki Law, a professional regulatory and defence law firm based in Toronto, Ontario. In her practice, Nicole defends professionals at regulatory Colleges and tribunals, and has a broad experience in health law and litigation. Nicole is a member of the OBA’s Health Law Section. Nicole can be reached at nicole@koziebrockilaw.com.