With nearly 1,000 school staff at the Toronto District School Board (TDSB) and hundreds more from other school districts seeking vaccination exemptions, there exists substantial risk that many staff, including teachers, will be placed on administrative unpaid leave in the coming weeks if their exemption requests are denied and they do not get vaccinated.
Over the past few months, we have received inquiries from Ontario teachers who may not fall within the two most widely accepted reasons for exemptions (medical and religious) but instead suffer serious underlying mental health conditions that preclude vaccination. These mental health conditions such as Post-Traumatic Stress Disorder (PTSD) do not fall within the medical exemptions being considered.
Such teachers have underlying mental health conditions that prevent them from being vaccinated. For those teachers, the barrier to vaccination is much greater and far more complex than a fear of needles or medical anxiety. They run a risk of aggravating or triggering their serious mental health conditions by getting the vaccine.
These teachers may have applied for exemptions for medical reasons. However, due to the nature of the exemption forms and the strict guidelines placed on their doctors, some of these most vulnerable teachers will have their exemption requests denied, forcing them into unpaid leaves of absence.
Teachers who are currently on approved medical leave—sick leave or Ontario Teachers Insurance Plan Long-Term Disability (OTIP LTD)—do not need to provide proof of vaccinations until they can return to work.
Among the factors that can have serious long-term consequences for teachers with a history of mental health issues:
- The stress of the mandatory vaccination policies;
- Privacy concerns with respect to the sensitive nature of the medical information that would need to be provided;
- The financial consequences of an unpaid leave.
Teachers who have come to us with this issue continue to be functionally and medically able to work. It is not unreasonable that when facing the prospect of unpaid leave, these teachers are considering other options such as applying for sick leave or OTIP LTD benefits, either as an alternative to filing for a medical exemption or if their request for vaccination exemption is denied.
Unfortunately, since these teachers can work, sick leave and OTIP LTD claims are difficult to prove. For OTIP LTD, teachers must demonstrate that due to an illness or injury, they are unable to perform their work duties. Arguably, an underlying mental health condition such as PTSD that precludes vaccination is an illness that can result in a teacher’s inability to work. At this early stage, it is not known how school boards and OTIP will assess these types of sick leave and LTD claims.
These types of sick leave/OTIP LTD claims are complex. As a comparison, consider a teacher suffering from a pain condition that is controlled by medication, but that medication causes cognitive impairment. Without the medication, the teacher would be in extreme pain. Thanks to the medication, the teacher is not in pain and pain does not limit functioning. However, the teacher cannot work due to the cognitive issues caused by the very medication that controls the pain.
In the case of the vaccine, the teacher is not disabled due to the mental health issue; however, it is medically necessary to be exempt from the vaccine, or risk triggering a mental health condition that will have serious consequences to the teacher’s functioning.
While there has been much consideration of the basis for two types of vaccine exemptions (medical and religious), there has been little discussion with respect to the human right to not be discriminated against based on disability and the requirement for accommodations short of undue hardship.
Like all employees, teachers are afforded human rights pursuant to the Ontario Human Rights Code. Employers, including school boards, are required to accommodate teachers and staff who suffer disability, including mental health disability. If a teacher does not qualify for an exemption, school boards should consider whether teachers who are unable to be vaccinated due to disabilities must be accommodated, as required by the Ontario Human Rights Code.
In circumstances where a teacher’s disability prevents vaccination but does not qualify as a medical exemption, the school board has a duty to accommodate the teacher short of undue hardship. Placing the teacher on an unpaid leave is arguably discrimination based on disability and may result in a grievance for human rights damages. Accommodations may mean that the teacher can work from home or continue with frequent rapid antigen testing. While neither accommodation would cause school boards undue hardship, they would address safety concerns.
Although there may be few teachers who suffer a disability that precludes vaccination, they do exist, and they are a vulnerable subset who are applying for exemptions and sick leave/OTIP LTD. School boards must seriously consider these requests for exemptions and accommodations or risk not-complying with human rights legislation.
If you are a teacher who is suffering from a disability that prevents you from working or from being vaccinated and you would like assistance with your OTIP LTD claim, please contact us.
I have represented teachers in their OTIP LTD benefit disputes for over a decade. Before that, I represented OTIP in defending their LTD denials. OTIP claims are complex and require an in-depth knowledge of the OTIP LTD Plan as well as other important benefits, employment and pension issues and entitlements.
At MK Disability Lawyers we offer trauma-informed, confidential, and free consultations to teachers who would like to better understand their options. During our consultation, we will review your OTIP LTD denial letter, discuss your disability and your LTD claim and, in consultation with you, we will then weigh your options and assess which course of action will best serve you in the context of your claim and your disability.
If you would like our assistance or representation in your OTIP LTD application, appeal or in a Court Action, we provide trauma-informed, experienced legal services dedicated to teachers who are disabled and disputing the denial or termination of their OTIP LTD claims.
The preceding is not intended to be legal advice. This blog is made available for educational purposes only as well as to give general information and a general understanding of the law, not to provide specific legal advice. By using this blog, it is understood that there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction. If your disability claim has been denied and you require legal advice, contact a lawyer specializing in disability law.