Guest post by Eric M. Roher, BLG Law Firm, National Leader of the Education Law Group

On September 27, 2021, the Toronto Board of Health asked the province to add COVID-19 vaccines to the list of mandatory vaccines for students under the Ontario Immunization of School Pupils Act.

Dr. Eileen de Villa, Medical Officer of Health for Toronto, had written to the Board of Health on September 13, 2021, asking it to request the province require COVID-19 vaccination for eligible students based on their age.  On September 27th, the Board of Health adopted her recommendation.

Dr. de Villa referenced the nine other diseases covered under the Act, which students enrolled in school must be vaccinated against, including polio, mumps and rubella.  In her letter, Dr. de Villa confirmed that the safety and effectiveness of approved vaccines has been proven in children ages 12 and older.

“Given the current epidemiology of COVID-19 and the need to support the safe reopening of schools, it is recommended that the province require COVID-19 vaccination for students who are eligible based on their age/year of birth.”

Dr. de Villa’s recommendation came after the chair of the Toronto District School Board, Alexander Brown, requested the Ontario government to add COVID-19 to the list of required vaccinations in a letter addressed to Dr. de Villa, Education Minister Stephen Lecce and Ontario’s Chief Medical Officer of Health Dr. Kieran Moore.

Under the Act, adding COVID-19 to the list of “designated diseases” does not need to be legislated, but can be done by Ontario’s Minister of Health.

COVID-19 vaccine should be compulsory for eligible students

While some health experts are concerned that adding COVID-19 to the mandatory list could antagonize vaccine-hesitant parents and make them less open to persuasion, Dr. Anna Banerji, an infectious disease expert at the Dalla Lana School of Public Health, said that the COVID-19 vaccines should be compulsory for eligible children and youth.

“We have vaccines for diphtheria, diseases that are very rare, so why not ensure vaccination against COVID-19 in the middle of the pandemic’s fourth wave when we’re trying to keep kids in school?”

“Having these kids vaccinated could save some of their lives, or prevent a lot of kids from suffering and prevent (COVID-19) from being spread to other people in the community. I support it – I think it’s the right thing to do.”

While in the past, provincial officials said they were considering the idea of mandatory student vaccinations, a spokesperson for Health Minister Christine Elliot indicated that there was no plan to add COVID-19 vaccines to the compulsory list.

In an email, dated September 23, 2021, Alexandra Hilkene, a spokesperson for the Minister, stated that “Ontario has released the most far-ranging mandatory vaccination policies for high-risk settings in the country, which will provide an additional layer of protection in these already regulated settings to protect our most vulnerable Ontarians.”

“The reporting and assessment components of the (Immunization of School Pupils Act) are already being accomplished through existing systems”, she said, and public health units can check student vaccination status in case of an outbreak.

However, on September 27, 2021, when asked about whether the Act would be amended to make COVID-19 a designated disease, the Minister of Health acknowledged that her government is considering the move.  Ms. Elliot stated: “We’re going to take a look at anything that is going to protect people, including young people.”

Dr. Moore also confirmed that the province is looking into adding COVID-19 vaccinations to the list of those required for students by law.

The Delta variant is driving up COVID-19 infections

Five weeks into the academic year, the Delta variant is driving higher COVID-19 infections in public school classrooms compared to last fall. In Ontario, one in five new COVID-19 cases in the province are school-related, compared with just seven percent last fall. For example, schools accounted for 902 cases the week of September 20th, or roughly 20 percent of the total cases in the province.  In the same period during the fall of 2020, schools accounted for 189 cases or seven percent of all cases in the province.

During the week of September 27th, Dr. de Villa reported that children in Toronto aged 4 to 11 had the highest COVID-19 case rate of any demographic, the first time this has happened during the pandemic.

The evidence is clear that the number of school outbreaks in Ontario is increasing.  So far this academic year, there have been 153 outbreaks in schools, the majority in elementary schools, where most student are not eligible for vaccines.  The Ontario government defines an outbreak as two or more lab-confirmed cases within a 14-day period.

Pediatric specialists report that most COVID-19 infections in children seem to be mild, and this appears to be true with the Delta variant.  However, as the virus circulates more easily, the number of severe cases could increase in proportion to the wider community.

A small number of children are developing a life threatening condition called multi-system inflammatory syndrome or MIS-C.  This is an inflammatory reaction in the body about four weeks after the infection with COVID-19. The inflammation can affect the heart, blood vessels and other organs, which can make some children very ill and in need of urgent care. Other children who contract the virus have lingering symptoms for months.

On October 1, 2021, Pfizer Canada submitted its initial trial data for the use of its COVID-19 vaccine in children aged five to 11 to Health Canada.  Pfizer indicated that its initial findings regarding its COVID-19 vaccine in children was sent in for review and it will continue to work with Health Canada as its aims to file a formal submission by mid-October.  The Pfizer vaccine for children ages five to 11 could receive approval from Health Canada by the end of November.

Pfizer announced that its vaccine, created in partnership with the German firm, BioNTech, proved effective in children aged five to 11.

In initial trials, Pfizer tested a much lower dose, a third of the amount that is in each adult dose, in a study involving 2,268 kindergarten and elementary school-aged children.  After their second dose, the company said that these children developed antibody levels just as high a teenagers and young adults getting the regular strength shots.

Public health units are preparing for vaccination rollout across the province

Public health units across the province are preparing to vaccinate children ages five to 11 once the COVID-19 vaccination is approved for them.  Toronto Public Health confirmed that it had formed a planning group that includes health partners, school boards, community representatives and the province.  The medical officers of health for Peel Region, Middlesex-London, Hamilton and Ottawa indicated that they were making arrangements for the rollout of this new vaccination program. For example, the medical officer of health for Peel Region said that his public health unit is “ready to deploy a vaccine strategy” for that cohort, pending approval from Health Canada and guidance from the province and would keep residents informed on a timeline.

Dr. Vinita Dubey, as associate medical officer of health at Toronto Public Health recentlys aid that “vaccinations have been proven very effective at lowering risks of severe illness, hospitalization and death.”

“This is why TPH supports and recommends provincial policies that encourage and increase COVID-19 vaccination among eligible school students.”

Dr. Dubey stated: “Vaccinations in the school setting will protect our school community and help build on our progress towards ending this pandemic.”

The question arises as to whether the Ontario Health Minister will accept the recommendations of Toronto Public Health, the Toronto District School Board and many other organizations and public health units and add COVID-19 to the list of designated diseases under the Immunization of School Pupils Act.  In the event that the Minister of Health accepts the recommendations, the questions arise as to how the legislation will operate, will parents be permitted to apply for an exemption and what types of exemptions will be permitted.

The Immunization of School Pupils Act

Ontario’s only express enforcement of vaccination is set out in the Immunization of School Pupils Act, which governs which immunizations are required for students to attend school. The Immunization of School Pupils Act requires students to complete a program of immunization against all designated diseases listed under the Act, and requires students to provide proof of such vaccination – or to object through a specific exemption process – in order to continue to access the school.

Under section 3(1) of the Act, the parent of a student must cause the student to complete the prescribed program of immunization in relation to each of the following designated diseases:

  • Diphtheria;
  • Tetanus;
  • Polio;
  • Pertussis (whooping cough);
  • Measles;
  • Mumps;
  • Rubella;
  • Meningococcal disease; and
  • Varicella (chicken pox).

However, a student can be exempt from these immunization requirements for (1) medical reasons; or (2) conscience or religious belief, if his or her parent completes the exemption process set out section 3(3) of the Act.

Exemption Process

Where the exemption is sought for medical reasons, the parent must complete a “Statement of Medical Exemption” that has been signed by a physician or nurse practitioner, and submit this form to their local public health unit.

Where the exemption is sought for conscience or religious belief, the parent must attend an immunization education session (which discusses basic information about immunization, vaccine safety immunization and community health, and immunization law in Ontario), in order to obtain a Vaccine Education Certificate signed by a public health unit. The parent must also complete a “Statement of Conscience or Religious Belief,” and have it sworn by a commissioner for taking affidavits in Ontario. Finally, the parent must make copies of their Vaccine Education Certificate and the sworn “Statement of Conscience or Religious Belief” and submit the originals to their public health unit.

Exclusion or Suspension of Students pursuant to ISPA

Should a student fail to complete the program of immunization, or the exemption process, required by the Act, the student may be excluded and/or suspended from school in certain circumstances. Under section 12 of the Act, a student may be excluded from a school where:

(a) of the medical officer of health is of the reasonable opinion that there is an outbreak (or immediate risk of an outbreak) of a designated disease at the school; and

(b) the medical officer of health has not received:

(i) a statement from a physician, nurse, or prescribed person confirming completion of prescribed program of immunization; or

(ii) a statement of medical exemption signed by a physician or nurse

Similarly, under section 6 of the Act, a student may be suspended from school where:

(a) the medical officer of health has not received:

(i) a statement from a physician, nurse or prescribed person confirming completion of a prescribed program of immunization;

(ii) an unexpired statement of medical exemption; or

(iii) a statement of conscience or religious belief/parental completion of education session

(b) the medical officer of health is not satisfied that the pupil has completed or will complete a prescribed program of immunization.

Decisions from the Ontario Health and Services Appeal and Review Board consistently uphold the validity of such exclusions and suspensions where a student fails to complete the immunization program or exemption process required by the Act.[1]

Given the relative novelty of the COVID-19 virus, COVID-19 is not listed as a designated disease under the Act, and therefore vaccination against COVID-19 is not currently mandatory for eligible students to attend school in Ontario.

As the COVID-19 pandemic continues to surge, the Government of Ontario may still accept the advice and recommendations of Toronto Public Health, Toronto District School Board and other organizations to amend Immunization of School Pupils Act to include COVID-19 as a designated disease under section 3(1). To date, no timeframe or official confirmation has been given for such an amendment.

[1] See LRH v Noseworthy, 2019 CanLII 88572; JB v Eastern Ontario Health Unit, 2018 CanLII 31877; IB v Kyle, 2018 CanLII 30998.