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Sent via email at nwhitmore@cpso.on.ca and feedback@cpso.on.ca

September 17, 2021
Dr. Nancy Whitmore, Registrar and CEO
College of Physicians and Surgeons of Ontario
80 College Street
Toronto, Ontario M5G 2E2

Dear Dr. Whitmore:

Re: Vaccine Passport Exemptions

I am writing on behalf of ARCH Disability Law Centre to express concern about your email correspondence to members of the College of Physicians and Surgeons of Ontario on September 1, 2021 and the College’s messaging shared on the FAQ section of its website, last updated on the same date. 

This messaging addresses physicians’ obligations regarding supporting documentation for medical exemptions from receiving a COVID-19 vaccine. Specifically, this messaging indicates that there are only two “acceptable” medical exemptions – 1) a severe allergy or anaphylactic reaction to a previous dose of a COVID-19 vaccine or any of its components, confirmed by an allergist/immunologist, that cannot be mitigated; and 2) a diagnosed episode of myocarditis/pericarditis after receipt of an mRNA vaccine.

More recently, on September 14, 2021, the Government of Ontario released O Reg 645/21, the regulatory framework for proof of vaccination requirements. Subsection 2.1(6)(c) of this regulation states that a person is exempt where they have a written document from a physician or registered nurse in the extended class, setting out that the person has a documented medical reason for not being fully vaccinated, and the effective time period for that medical reason. 

The College’s September 1st messaging runs contrary to this subsection, and the accompanying guidance document, in a number of important ways that can have significant consequences for persons with disabilities. The College’s approach unjustifiably narrows the application of the regulation to only those persons with allergies or myocarditis/pericarditis. This means that persons with disabilities who cannot receive the vaccine, but who fall outside these two categories, will be unjustifiably excluded from exemption, contrary to what is contemplated by the regulation. Relatedly, in stark contrast to the broad category of “physicians or registered nurses in the extended class” that is set out by the regulation, the College makes one of the categories conditional on confirmation from an immunologist/allergist (a condition that may not apply or may not be accessible for all persons who are unable to receive the vaccine for disability-related reasons). 

Further, the College’s guidance to physicians will result in serious breaches of confidentiality with unnecessary oversharing of medical information. While the regulation contemplates that the written document include a statement that there is a medical reason for the exemption, the College’s directions cast the scope of required information far broader requiring disclosure of “the reason they cannot be vaccinated against COVID-19 (i.e., document clear medical information…).”

While ARCH appreciates and respects the difficult role of medical professionals as they navigate these pandemic conditions, the College’s messaging about what constitutes a valid exemption is both contrary to physicians’ human rights obligations, as well as running contrary to the new regulation.  

The College’s messaging narrows the categories of valid exemptions in a way that is not defensible in a human rights framework. As we near September 22, 2021, the effective date of proof of vaccination status, ARCH is concerned that the College’s directions will be interpreted in a manner that is under-inclusive and risks the delivery of discriminatory medical-services. 

In the interests of the general public and protecting the rights of our most vulnerable persons, any messaging by the College that unjustifiably narrows the medical exemption regulation is troubling and inappropriate. Human rights protections under Ontario’s Human Rights Code and the Canadian Charter of Rights and Freedoms continue to fully apply during a pandemic, and are interpretive aids for any piece of legislation or regulation. As service providers, physicians are bound by the duty to accommodate, which require them to provide medical services that meet the individual disability-related needs of their patients.

We urge the College to, immediately and not later than September 22, 2021, rescind and clarify its message and ensure that its members understand their paramount human rights obligations during this pandemic, and that the medical exemptions for vaccine status must be provided in an individualized manner so as to not unjustifiably restrict those persons who cannot be vaccinated for disability-related reasons. While we appreciate that the College’s communication was released prior to the passing of the regulation, we trust that the College will take immediate and appropriate steps to remedy these concerns.

We would welcome an opportunity to discuss this matter with you should you have any questions. Please note, in any event of your response and in the interests of transparency to our client communities, we will be making this letter public as of September 22, 2021.

Sincerely,
ARCH Disability Law Centre

Original letter has digital signature

Robert Lattanzio
Executive Director 

cc:
Premier Doug Ford    premier@ontario.ca 
Christine Elliott, Minister of Health    Christine.Elliott@ontario.ca
Helen Angus, Deputy Minister of Health    Helen.Angus@ontario.ca
Raymond Cho, Minister of Seniors and Accessibility    Raymond.Cho@ontario.ca
Denise Cole, Deputy Minister for Seniors and Accessibility    Denise.Cole@ontario.ca
Patricia DeGuire, Chief Commissioner, Ontario Human Rights Commission    cco@ohrc.on.ca