Time to consider mental health issues in COVID vaccination policies

By Tony Poland, LegalMatters Staff • The rights of those who have legitimate mental health issues that prevent them from getting a COVID-19 vaccination are being ignored but it is only a matter of time before the issue lands before the Ontario Human Rights Tribunal, says York Region disability insurance lawyer Courtney Mulqueen.

Mulqueen, principal lawyer and CEO, Mulqueen Disability Law Professional Corporation, says “some mental health conditions pose an insurmountable barrier to vaccination and could trigger past trauma for these people” and “if vaccine exemptions are not possible, then employers have a duty to accommodate under the Ontario Human Rights Code (OHRC).”

“These are individuals who are functionally able to work and want to work. This is not about their personal preference or making a political statement or a general fear of needles” she says. “These people have complex mental health conditions such as post-traumatic stress disorder that prevents them from becoming vaccinated. Not being vaccinated is not a matter of choice for them and now they are being discriminated against.”

‘At some point, this issue will have to be decided’

“At some point, this issue will have to be decided by the courts or the human rights tribunal,” she tells LegalMattersCanada.ca. “This issue is facing an unknown number of Canadians but without judicial or administrative guidance to assist doctors, employers and employees, this discrimination will continue. My concern is that these people are suffering in silence, wondering whether they have a legitimate right to be exempt from vaccination and accommodated at work.”

Mulqueen says many employers are relying on mandatory vaccination policies that are not inclusive. Meanwhile, those with mental health issues are falling through the cracks.

“There are people with legitimate mental health conditions who are unable to work and earn an income solely because they are unvaccinated,” she says, adding they are being forced to look at other options to support themselves. “Even if they do qualify for long-term disability (LTD) benefits through their employer, they will earn a fraction of their regular income and will missing out on all the positive mental health and career development benefits of working. Those who do not qualify for LTD risk unpaid leave and potentially termination. It is a troubling situation all around.”

The Human Rights Code states that “mandating and requiring proof of vaccination to protect people at work or when receiving services is generally permissible … as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated.”

14 protected grounds in the human rights code

There are 14 protected grounds in the OHRC, including disability, which “covers a broad range and degree of conditions, some visible and some not visible. The OHRC‘s policy for preventing discrimination based on mental health disabilities reflects its interpretation of the Code, and sets out standards, guidelines and best practices examples for employers and others. 

Those unable to receive the vaccine must provide written proof from a physician or registered nurse stating their exemption. However, the Ministry of Health’s medical exemptions are limited, says Mulqueen.

“The exemptions cover adverse physical reactions such as allergies and creed but that’s it. It does not specifically address disability, let alone mental health conditions as legitimate basis for an exemption or accommodation,” she says. “The Human Rights Code protects those with mental health disabilities from discrimination. However, what we are seeing is that when someone is unable to satisfy an employer’s mandatory vaccination policy, their request for an exemption or an accommodation such as working from home, are being assessed based only the very narrow medical exemptions and creed, with no consideration for disability.”

“Why is no one looking at this issue from a mental health perspective?” Mulqueen asks. “Since the courts and tribunals have not yet dealt with this issue, we are left wondering how this might play out in the coming months and what to do now.”

Government forms do not allow for additional reasons for exemptions

Exacerbating the problem is the fact that the government-issued form doctors must complete does not allow for additional reasons for exemptions.

The College of Physicians and Surgeons of Ontario (CPSO) has also advised its membership that there are “very few legitimate medical reasons not to get vaccinated against COVID-19.”  Those with mental health conditions are encouraged to visit special vaccination clinics and to seek therapy. 

In a CPSO publication, doctors were told that “given the rarity of these exceptions, and in light of the fact that vaccines have been proven to be both safe and effective, any notes written for patients who qualify for a medical exemption need to clearly specify:

• the reason they cannot be vaccinated against COVID-19 (i.e., document clear medical information that supports the exemption); and
• the effective time period for the medical reason (i.e., permanent or time-limited).

“One client went to his long-time family doctor who was aware of his prior trauma and the severity of his condition but would not support his exemption. He could not support him,” Mulqueen says. “The problem is not only the standard exemption form that doesn’t address this sort of issue but doctors risk disciplinary action if they fail to adhere to CPSO guidelines.”

There is a fundamental misunderstanding of the issue, she says.

‘It is not needle hesitancy or a phobia’

“The people I have been speaking with have experienced past trauma in different forms and something as invasive as a vaccination will likely trigger the past trauma and cause serious damage to their mental health,” Mulqueen explains. “It is not needle hesitancy or a phobia. Attending therapy or going at a special vaccine clinic or taking anxiety medication will not mitigate the risk of vaccination.” 

There is also the issue of having to reveal a mental health problem that can prevent a person from coming forward, she says.

“Some people are hesitant to tell anyone about their issue because it is so sensitive,” Mulqueen says. “They should not have to fear disclosing their past trauma to an employer in order to get this accommodation.”

She says there needs to be some guidance for doctors when dealing with mental health exemptions and accommodations.

Doctors need to be given more discretion

“The government and even the CPSO should provide more specific and inclusive direction in terms of exemptions and accommodations for people with mental health disabilities,” Mulqueen says. “Doctors must be afforded some discretion to support these types of claims. These people are vulnerable and need their support. That is the very least that can be done for them.”

She notes there have been concerns people will attempt to falsely claims to avoid COVID vaccinations.

“The fear is people are going to make illegitimate claims,” Mulqueen says. “However, granting exemptions and accommodations for a mental health disability is not going to open the floodgates for abuse if proper guidelines are established for assessing and supporting these claims on a case by case basis.”

She says while it could take some time for cases to make their way through the legal system, Mulqueen expects there will be some clarification in the near future.

“These are uncharted waters. People are being put on unpaid leaves or scrambling to make disability claims because they don’t know how to navigate accommodations and exemptions in this new world,” she says, “It’s only a matter of time before this issue will need to be decided so people will not be forced to choose between vaccination and their mental health.”