Navigating Mandatory Vaccination Policies and Exemptions for Teachers with Underlying Mental Health Conditions

With nearly 1,000 school staff at the TDSB and hundreds more from other school boards

seeking vaccination exemptions, there exists a very real and substantial risk that a vast majority of staff, including teachers will be placed on administrative unpaid leave in the coming weeks, if their request for exemptions are denied and they do not get vaccinated.

Over the past few months we have fielded inquiries from teachers who may not necessarily 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 teachers are not choosing or preferring not to be vaccinated. Rather, they have underlying mental health conditions that do not allow them to be vaccinated.

For teachers who are currently on approved medical leave (sick leave or long-term disability through OTIP), they do not need to provide proof of vaccinations until such time as they are no longer disabled and returning to work.

However, for a handful of teachers who suffer serious underlying mental health conditions, vaccination is not possible or at least not possible without resulting in an aggravation or triggering of their mental health conditions. For those teachers, the barrier to vaccination is much greater and far more complex than a fear of needles or medical anxiety. Complex mental health conditions such as Post-Traumatic Stress Disorder, do not fall within the medical exemptions being considered (allergy and heart inflammation).

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 with respect to supporting exemptions, some of these most vulnerable teachers will have their exemption requests denied and will be forced into unpaid leaves of absence.

The stress of the mandatory vaccination policies; the lack of medical support from their treating doctors and specialists; privacy concerns with respect to the sensitive nature of the medical information that would need to be provided; and the financial consequences of an unpaid leave can have serious long-term consequences for teachers with a history of mental health issues.

Teachers who have come to us with this issue are not our usual teacher clients who are typically suffering from various physical and/or mental health disabilities and need our help with their OTIP LTD claims. Rather, these teachers have been working and continue to be functionally and medically able to work. But for their inability to be vaccinated due to their underlying mental health conditions, they are otherwise well. 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 long-term disability benefits as an alternative to filing for a medical exemption or if and when their request for vaccination exemption is ultimately denied.

Unfortunately, since these teachers are medically and functionally able to work, sick leave and OTIP LTD claims will be difficult to prove. For OTIP LTD, teachers must demonstrate that due to an illness or injury, they are unable to perform the “significant duties of their specific assignment”. Arguably, an underlying mental health condition such as PTSD that precludes vaccination is an “illness” and does 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 expected to be complex and require some comparisons to other types of claims that are typically approved. An example not related to COVID-19 vaccinations would be a circumstance whereby a teacher has a pain condition that is controlled by medication that impairs cognitive function. The teacher is not in pain due to the injury/illness and pain does not limit functioning. However, the medication used to manage the pain results in serious cognitive impairment to the extent that the teacher is not able to work. In the case of the vaccine, the teacher is not disabled due to PTSD (for example) 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 person’s functioning. In these examples, the disabilities are the pain condition and PTSD but the reason the person is unable to work is due to medication that the person must/must not take for the disability.

While there has been much consideration of the basis for two types of vaccine exemptions (medical and creed), there has been little discussion with respect to the Human Right to not be discriminated against based on disability and the requirement for accomodations short of undue hardship.

Teachers, like all employees (unionized or not) are afforded Human Rights pursuant to the Ontario Human Rights Code. Employers, including school boards, are subject to human rights legislation and required to accomodate teachers and staff who suffer any sort of disability, including mental health disabilities. If a teacher does not qualify for an exemption (medical or creed) according to the Ministry of Health and various school board policies, school boards should also be considering whether teachers who are unable to be vaccinated due to disabilities (such as serious and complex underlying mental health conditions), must be accomodated, 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 disablity and may result in a greivance for Human Rights damages. Accommodations may mean that the teacher is allowed to work from home or continue with frequent rapid antigen testing. Both of these accommodations would not cause school boards undue hardship and would address the board’s safety concerns.

Although teachers who suffer a disability that precludes vaccination may be few in number, they do exist and they are a vulnerable subset of teachers who are applying for exemptions and sick leave/OTIP LTD. School boards must seriously consider these requests for exemptions and accommodations or risk their own non-compliance 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 been representing teachers in their OTIP LTD benefit disputes for over a decade and before that, I represented OTIP in defending their LTD denials, for nearly as long. 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.

Contact Us To Help With Your Denial Letter

At Mulqueen Disability Law 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.