Lack of Mandatory Vaccinations Causing Significant Harm To Disabled Students

DisabilityLaw

I’m posting this to contribute to the public policy discussion on the lack of vaccinate mandates in the Province of Ontario in educational and disability supports.  The province has largely given staff working in education and disability supports the choice to get vaccinated or not.  School Boards or support agencies can not currently guarantee staff working with vulnerable populations are vaccinated.  The choice some staff have made in not getting vaccinated against COVID-19 is having a devastating impact on families to which had an extremely rough time throughout the pandemic, including ours.  I wanted those reading this to whom have chosen not to get vaccinated and work within the educational and disability support systems to understand the consequences of that choice, and the impacts of the lack of provincial leadership in not mandating vaccinations for everyone working with vulnerable children has had.

I’m hoping what I posted here today will educate everyone on where the law is on this moving forward.  This was written by me, not lawyers. So please don’t take any of this as legal advice. I’m not a lawyer, but I’ve been given the go ahead by our legal advisors to post our complaint into government publicly to contribute to the public policy and legal discussions happening across the province on mandatory vaccinations.

The public sector education unions have come out against mandatory vaccinations.  The labour movement in this province has swayed way out of line from its traditional roots opting to protect its own members “choice” over that of putting people who are at high risk at major risk, forcing some families to continue to keep their kids home and without accommodations.

Here is a copy of the human rights complaint we sent into the Ontario Ministry of Education, Ministry of Health, and Ministry of Community and Social Services over the lack of vaccine mandates and how it’s impacted not just our family, but many others in the same position.

Background:

The Koblovsky family is comprised of three individuals. J the father, L the mother, and M the child. M is a 16-year-old non-verbal autistic child with [redacted] needs. M also has a secondary diagnosis of the full [redacted] Syndrome. M was received into the Ontario Autism Program (OAP) in 2018 through Kerry’s Place Autism Services, and up and until March 2020 was receiving 4 – 8 hours of in home one to one behavioural programming per week along with behavioural support at the York Region Board of Education. One to one behavioural support, and educational support was suspended in March 2020 because of the COVID-19 pandemic and the Province of Ontario’s public health measures in an attempt to control the spread of COVID-19.  J has been diagnosed with [redacted] and is on a prescribed medication twice a day, and L has been diagnosed with [redacted] and is currently taking prescribed medication for that condition. Both of parents are at high risk of complications of COVID-19.  L has also been diagnosed with [redacted] and presents complications regarding her ability to care for M, leaving most of the caregiving responsibilities to J. All three family members have been fully vaccinated as of July 2021.

Both parents have been caring for M full-time, and during the pandemic felt it very difficult to care for M without one-to-one supports in place.  M requires all his meals to be made separately as a result of sensory, texture, and motor skill issues. The family had a cook in place to assist with this chore in home, however that support was lost during the pandemic. On top of the cooking, J who is at high risk is responsible for shopping, extra cleaning because of COVID, along with regular day to day care-giving activities such as bathing M, toilet training, brushing M’s teeth, getting him dressed, extra laundry etc.  The family found shopping very difficult during the pandemic.  The family is without transportation, and there was limited to no grocery delivery options available in Georgina, Ontario in which they reside.  When the family did use the limited delivery options, they’d often find that supplies were missing from their orders and had to venture out to the several stores to complete the order.  The family also doesn’t have any other family or friend supports close by in the community to assist with not just caregiving but shopping duties throughout the pandemic, as well as transportation to and from medical appointments.

M cannot wear a mask due to oral sensory issues.  M also self-injurs when his behaviour escalates, often biting on his fingers, hitting his mouth, and biting his hands which puts him at higher risk of contracting COVID.  M often has his hands in his mouth when he escalated. Due to M’s behaviours and in-ability to sit for virtual learning and as a result of high-risk household members, the family has had to pull M completely out of school in September 2020, and severely reduce ABA sessions to once every two weeks and only on a consultative basis without M present. Speech language services were also put on hold.  Prior to March 2020, M applied for an assistive communications device, and as a result of the pandemic and the risk to the both parents COVID-19 presents, the assessment for this device had to be put on hold until such time as M returned to in-person learning at school. M has been home full-time since March 2020. As long as M is home full-time, and until the pandemic is over, J will bear the brunt of the care-giving workload, to which throughout the pandemic has had an impact on his mental health due as a result caregiver burnout due to the lack of access of support services that could accommodate the family as a result of disabilities both parents have that put them at high risk for complications if they contracted COVID.

Due to J taking on an extra workload as a result of care-giving, cooking and cleaning full time during the pandemic with very little to no community supports, the family has had a very limited time to work with M one on one with ABA strategies which has left M to regress in gains that he made through communicating, and behavioural escalations which has had a significant impact on the family’s mental health and well-being throughout the pandemic.

At Issue:

The family can’t access services on equal level as others due to physical disabilities and the inherent risk those disabilities play that make them more susceptible to complications through COVID-19.  Those disabilities as listed above include J with [redacted], L with [redacted], and oral sensory issues for M. There is currently no suitable accommodation to remedy this and to ensure fully vaccinated staff are working with the family.

The family is worried that without fully vaccinated staff working with M and within the family home that it will present an unwarranted risk to the family’s health and safety.  There is currently no option for care for M if J is incapacitated due to contracting COVID- 19.  The province in its COVID-19 response has largely left the Koblovsky family at risk, and without appropriate supports.  This is discriminatory.  The Koblovsky family is also concerned that M continues to regress, and lose gains made prior to COVID in 2 years of intensive one to one ABA therapy as a result of lack of one-to-one professional support.  The province has a legal duty to accommodate M and all members of the Koblovsky family members for in-home supports, and in education keeping in mind that both parents continue to be a high-risk population as it pertains to COVID, and virtual learning isn’t an option for M.

The province has a duty to ensure the safest environment possible to accommodate M and any high-risk household members, and that environment must include vaccinated staff.  The lack of mandated vaccinations for those working with vulnerable populations both through the educational system and within the Ontario Autism Program is not accommodating to the family’s situation as stated under the Ontario Human Rights Code and reaffirmed by the courts throughout the pandemic.  The lack of accommodation is discriminatory towards a family that is dealing with multiple disabilities that puts them at risk for complications due to COVID. This is also against The United Nations Convention on The Rights of Persons with Disabilities (CRPD) in which Canada is a signatory.  The respondents must correct course immediately and without hesitation on making sure COVID-19 vaccinations are mandatory for those working with this family and direct those in the education system and within disability supports to accommodate this family’s needs, and to stop discrimination based on disability.

Grounds for Application to The Ontario Human Right’s Tribunal

Section one of the Ontario Human Rights Code states:

1 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.  R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1); 2012, c. 7, s. 1.

M is currently not receiving educational one-to one support because of the lack of vaccination mandates of agency and educational staff. The respondents have fallen short of mandating vaccines for critical support staff for the family, opting for an educational approach which is not accommodating to the needs of the Koblovsky family and continues to discriminate against them as people dealing with disabilities that put them in the high-risk category for complications of COVID-19.  The Ontario Superior Court made it clear that accommodation of high-risk household members must be taken into consideration when accommodating a child’s right to educational services throughout the pandemic in Zinati v. Spence[2]:

[27] 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.

Currently the York Region District School Board (YRDSB), and virtually all services involved with the family as it relates to the care of M cannot guarantee staff is vaccinated under the respondents’ current direction to these services regarding vaccination disclosure citing privacy issues, and a lack of vaccination mandates.  The respondents have opted for an educational approach to vaccines for those front-line staff who refuse to get vaccinated rather than making them mandatory in settings that expose high risk and vulnerable people to COVID-19. This approach continues to discriminate against high-risk individuals and people with disabilities such as the Koblovsky family to which is putting the family at unnecessary risk to exposure of COVID-19 if they opted to resume support services and as a result is leaving the family unsupported not accommodated.

People with underlying health conditions that have been fully vaccinated continue to show up in hospitals around the province.  The respondents have a duty under the code to ensure reasonable accommodations are met this includes making sure that all staff working with the family are fully vaccinated against COVD-19 and the family is in the safest environment possible when resuming support and educational services.  The longer staff remain unvaccinated and the safest supportive environment possible not put into place for M and the family, the longer the Koblovsky family isn’t accommodated, and the more damage is caused to their son as a result of this discrimination.  With respect to accommodation, the Ontario Human Rights Commission provided some guidance on appropriate accommodation under code grounds:

13.3 Appropriate Accommodation

In addition to designing inclusively and removing barriers, organizations must also respond to individual requests for accommodation. In some situations involving people with psychosocial disabilities, organizations may also have to respond to situations where they perceive that there may be a need for accommodation, even if a specific request has not been made.[179]

The duty to accommodate requires that the most appropriate accommodation be determined and provided, unless this causes undue hardship. Accommodation is considered appropriate if it results in equal opportunity to enjoy the same level of benefits and privileges experienced by others or if it is proposed or adopted for the purpose of achieving equal opportunity, and meets the individual’s disability-related needs. The most appropriate accommodation is one that most:

  • respects dignity (including autonomy, comfort and confidentiality)

  • responds to a person’s individualized needs

  • allows for integration and full participation.

The respondents continue in their approach in not making COVID-19 vaccinations mandatory of front line educational and support staff, by doing so the respondents violate all members of the Koblovsky family’s dignity.  The respondents are not being attentive to the individual needs of the Koblovsky family to make sure they are in the safest environment possible so that they can continue with much needed support services, and as a result of the lack of mandatory vaccinations of staff working with the family, the Koblovsky family cannot fully participate in support and educational services due to the risk unvaccinated staff pose to both parents and their son M.

The Ontario Human Rights Commission released its response to the respondent’s current directives on vaccine certificates. The province’s does not have a duty or the authority to accommodate under code grounds individuals who choose not to get vaccinated. The Commission’s response to the respondents:

While the Code prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.

Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements. The duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship – such as during a pandemic.

The Ontario Superior Court of Justice has also been grappling with the COVID-19 vaccination dilemma as it relates to jury selection and the protection of court staff. In a recent decision, Justice Phillips stated:

    [14] Finally, I am aware that in many contexts, accommodations are made for unvaccinated persons. For instance, a student may nonetheless attend school even though they are unvaccinated as a result of medical or conscience-based reasons. This approach is the result of a cost-benefit analysis. It is thought that keeping every kid in school, even with medical limitations, is beneficial. Likewise, we see value in allowing people to enjoy their own views in respect to science and medicine. Those values are benefits deemed to outweigh the downside – the risk that certain diseases will manifest themselves. In my view, however, using this sort of reasoning in the Covid-19 context is apples to oranges thinking. With a relatively small cohort of students unvaccinated, the risk of an outbreak of diphtheria, rubella, polio and the like is exceedingly low. Those illnesses have effectively been run out of town such that accommodating the unvaccinated is largely inconsequential. The same cannot be presently said for Covid-19 which is now endemic and spreading in a significant and uncontrolled manner. It continues to qualify as a global pandemic and is causing substantial harm. As a result, in my judgment, the cost-benefit analysis breaks the other way when it comes to Covid-19 vaccination and jury duty. Any upside in accommodating an unvaccinated juror is outweighed by the downside of exposing the remaining jurors to risk of physical harm as we try to make this fourth wave the last one.

If the courts refuse to allow unvaccinated jurors to serve their community in the justice system because they pose a risk to the health of others (including in the courts opinion fully vaccinated individuals) and present a risk to the application of justice, then the same should apply to educational and support systems especially as it pertains to accommodating the rights of high-risk individuals and people with disabilities. The Koblovsky family has a hard time believing that any tribunal or court would come out in support of any argument made against such logic.

In addition to the Ontario Human Rights Code violations, the Ontario Human Rights Tribunal if an application is made must also weigh the respondent’s discrimination and lack of accommodation of the Koblovsky family as it pertains to the educational and one to one support that the Koblovsky family is trying to access with conformity of Canada’s international human rights obligations. Systemic discrimination, accommodation, and protection of people with disabilities is also a charter issue, however the Ontario Human Rights Tribunal must consider legal conformity with international human rights obligations the country has signed on to when adjudicating this this complaint.  The family must exhaust all legal avenues prior to approaching the United Nations for relief on CRPD grounds as outlined in Article 2 (d) of the Optional Protocol which states:

Article 2

The Committee shall consider a communication inadmissible when:

(d) All available domestic remedies have not been exhausted. This shall not be the rule where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief;

To further the conformity argument with international obligations and within Canadian constitutional law, The Supreme Court of Canada ruled in R v Hape that legislation and law (including regulatory measures and directives from government) must conform to Canada’s international legal obligations.  To quote R v Hape:

Since it is a well‑established principle of statutory interpretation that legislation will be presumed to conform to international law, in interpreting the scope of application of the Charter , a court should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a construction.

The respondents’ actions to COVID-19 in not ensuring mandatory vaccinations of educational and agency support staff is discriminating against all members of the Koblovsky family due to high-risk household members as a result of physical disabilities, and due to that discrimination, their ability to access educational and other critical one to one support for their son M has been severely compromised in large part due to the risk unvaccinated staff pose to high-risk family members.  As such each respondent to this complaint is currently in violation of the following articles of the CRPD:

Article 5 – Equality and non-discrimination:

  1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
  2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
  3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.

The Koblovsky has mentioned above because of the risk unvaccinated staff pose to high-risk members of the family they are not able to access the services they need in the same way as those who are not high risk can. As it relates to their M, having unvaccinated staff work with this family is not in the best interests of the child: Article 7 (2) of the CRPD applies:

Article 7 – Children with disabilities

  1. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.

The respondents do not have the best interests of high-risk household members at heart and ensuring the safest learning environment possible for M.  The safest environment is to ensure that all staff working with M are fully vaccinated.  Article 9 (2.e) of the CRPD applies as it relates to the family having to put an assessment for an augmented communication device on hold until such time the province mandates vaccines for front line staff, and also the lack of access to support services such as in-person ABA sessions for M as a result of the same issue:

Article 9 – Accessibility

  1. States Parties shall also take appropriate measures:

  2. e) To provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public;

Article 10 of the CRPD deals specifically with the right to life for both parents suffering from physical disabilities and that Canada has an obligation to protect the lives of high-risk individuals fully and completely unvaccinated staff could put the lives of family members in jeopardy:

Article 10 – Right to life

States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.

Article 12 of the CRPD deals with equal recognition under the law.  In this case can be applied to the family not being able to access support services, and the lack of accommodation of the high-risk status of both parents as a result of their physical disabilities. It is also discriminatory for M in not being able to receive the same supports as a family who doesn’t have high risk household members due to the risk unvaccinated staff pose.

Article 12 – Equal recognition before the law

  1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

  2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

Not ensuring educational and support staff are fully vaccinated puts the Koblovsky family’s security and liberty at risk when trying to access services.  Article 14 (1a.b, 2) of the CRPD applies:

Article 14 – Liberty and security of person

  1. States Parties shall ensure that persons with disabilities, on an equal basis with others:

  2. a) Enjoy the right to liberty and security of person;

  3. b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.

  4. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.

By not being able to access accommodation of in-person supports due to the risk unvaccinated staff pose to the family, the province is in violation of Article 19( b.c) of the CRPD:

Article 19 – Living independently and being included in the community

States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

  1. b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

  2. c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

Article 24 of the CRPD deals with education rights of people with disabilities.  As a result of the respondents not mandating vaccines for educational staff, the family has had to keep their son M home because of the risk unvaccinated staff working with him would pose the family.  With respect to Article 24, the following applies to this situation:

Article 24 – Education

  1. States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and lifelong learning directed to:

  2. The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;

  3. The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential;

  1. In realizing this right, States Parties shall ensure that:

  2. a) Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;

  3. b) Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;

  4. c) Reasonable accommodation of the individual’s requirements is provided;

  5. d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;

  6. e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.

  7. States Parties shall enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community. To this end, States Parties shall take appropriate measures, including:

  8. a) Facilitating the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication and orientation and mobility skills, and facilitating peer support and mentoring;

  9. States Parties shall ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. To this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities.

And finally due to the risk unvaccinated staff pose to the family, and lack of access therein of rehabilitation services such as behavioral therapy, and speech language pathology for M, the following of Article 26 of the CRPD applies:

Article 26 – Habilitation and rehabilitation

States Parties shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. To that end, States Parties shall organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services, in such a way that these services and programmes:

Remedies Sought Prior to Application Before the Ontario Human Rights Tribunal:

  • The respondents are to immediately and without delay, ensure mandatory vaccinations of educational staff and support staff that work with the Koblovsky family by directing all staff working through the YRDSB, Kerry’s Place, YSSN and beyond so that these critical and time sensitive services can resume and M3 can grow into the person he’s meant to be. To continue to delay this with educational programming of staff who refuse to get vaccinated from COVID-19 will continue the considerable damage to M as he will continue to regress and the family as they will continue to be under supported and not accommodated.
  • A written confirmation from each respondent that all services the Koblovsky family has in place through the YRDSB, Kerry’s Place, CTN, and YSSN will fully resume in-person supports with fully vaccinated staff by October 15th, 2021. Failure to do so, will result in an application to the Human Rights Tribunal asking for an expedited process since lack of accommodation is causing significant harm to their son M and the Koblovsky family as a whole.
  • To extend current behavioral plans through the Ontario Autism Program for children in core services prior to the pandemic for a full year and a half in order to regain what was lost as a result of suspension of one-to-one supports throughout the pandemic.
  • Each respondent’s office must have a copy of the Ontario Human Rights Code and the CRPD visible in plain view upon entry into their Queen’s Park offices for a period of one year.
  • A public apology to the Koblovsky family by the Ministry of Health and Science Advisory Table for excluding the Ontario Human Rights Code and the CRPD from their discussions and mandates, thus leading to the discrimination and lack of accommodation of people with disabilities throughout the pandemic.
  • Agree that this complaint is of public interest, and that responses to and from outside, and if needed inside the Tribunal can be made public, while protecting the privacy of family members.

Should accommodations not be reached by October 15th, 2021, the Koblovsky family will file on an expedited basis to the Ontario Human Rights Tribunal, and the Koblovsky family will be looking for the maximum amount of monetary damages allowed by the Ontario Human Rights Tribunal along with the remedies listed above.

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