The decision by the Ford Government in Ontario to not implement a mandate that all public sector educational workers be vaccinated has been the topic of debate for weeks, with the Ford Government missing in action on all levels. With so many going back to school in the days ahead many parents are concerned about what this will mean for the school year as Ontario heads back into another wave of COVID?
As a parent to a child with a disability, and someone who is in the high-risk category of serious illness if I contracted Covid, I did some legal research last year on exactly what the courts were saying when looking at accommodations in education during the pandemic. The question on a lot of parents’ minds (especially those with medically fragile kids and household members) – Do the rights of unvaccinated educational staff who don’t get the COVID shot or refuse to let the board know their vaccination status overrule the rights to accommodation and protection of children and their families?
The precedent that many cases I’ve look at during the pandemic and reference is Zinati v. Spence when looking at accommodations in education through COVID. Granted situations have changed somewhat since the roll out of the vaccines (this precedent was before the vaccine roll out), however the courts have provided some guidance with respect to accommodating the educational needs of the child. To reference Zinati v. Spence (emphasis added):
 In my view, and having regard to available jurisprudence on this new and evolving issue, determinations about whether children should attend in-person learning or online learning should be guided by the following factors:
a. It is not the role of a court tasked with making determinations of education plans for individual families or children to determine whether, writ large, the government return to school plans are safe or effective. The government has access to public health and educational expertise that is not available to the court. The court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The situation and the science around the pandemic are constantly evolving. Government and public health authorities are responding as new information is discovered. The court should proceed on the basis that the government’s plan is reasonable in the circumstances for most people, and that it will be modified as circumstances require, or as new information becomes known.
I would submit that after the vaccine roll out, that the courts could very much look at the data over the past few months and the impact the vaccine has had on lowering infections, thus lowering the risk. One would think that the government’s decision-making process in not making vaccines mandatory for educational staff could end up putting students at unnecessary risk. To further reference Zinati v. Spence from before the vaccine roll out (emphasis added)::
 b. When determining what educational plan is in a child’s best interest, it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic. There is no guarantee of safety for children who learn from home during a pandemic either. No one alive today is immune from at least some risk as a result of the pandemic. The pandemic is only over for those who did not survive it.
It is presently realistic to expect and require a guarantee of safety for children returning to school due to the vaccine roll out. Granted risk isn’t zero, however the courts have looked at and provided guidance on reducing the risk to students and workload on parents due to COVID as much as possible. The courts also reference the accommodation and protection of high risk household members. Again, from Zinati v. Spence (emphasis added):
 c. When deciding what educational plan is appropriate for a child, the court must ask the familiar question – what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limited to:
i. The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;
ii. Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;
iii. The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;
iv. Any proposed or planned measures to alleviate any of the risks noted above;
v. The child’s wishes, if they can be reasonably ascertained; and
vi. The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.
In a nutshell, the health and safety of students has been very much on the minds of the courts throughout the pandemic. The school boards should not be forcing parents to keep their kids home, because of the risk unvaccinated staff pose. I have a hard time believing that the courts would rule in favour of unvaccinated staff or the government (considering government’s messaging on getting the COVID vaccine) in not mandating the safest environment possible for in-person learning during this school year for all students as required under law. This should be particularity of interest for families of disabled children.