Canada: Guidance From Alberta's Medical Authorities On Vaccination Exemptions

Alberta employers are increasingly implementing COVID-19 vaccination policies in response to the fourth wave of COVID-19, recent announcements of the Province of Alberta's Restrictions Exemption Program and the City of Calgary's COVID-19 Vaccine Passport Bylaw. As vaccination policies become more common, so will requests for medical exemptions from vaccination policy requirements. This potentially raises a number of questions for Alberta employers dealing with requests for medical exemptions under vaccination policies.

This article addresses recent guidance from the College of Physicians and Surgeons of Alberta ("CPSA") and the Alberta Health Services ("AHS") COVID-19 Scientific Advisory Group ("COVID-19 Advisory Group") regarding medical exemptions from COVID-19 vaccinations.

Guidance from Alberta College of Physicians and Surgeons

On September 15, 2021, the Chief Executive Officer of CPSA released guidance to its member physicians and the public (the "CPSA Guidance") regarding medical exemptions from COVID-19 vaccinations. The CPSA Guidance states the expectation that nearly all patient requests for such exemptions will be denied by the physician, and that situations where a medical exemption from COVID-19 vaccination is appropriate are "exceedingly rare".

The CPSA Guidance advises physicians that patients should receive advice regarding COVID-19 vaccination that is rooted in the latest evidence:

• COVID-19 vaccination is safe and effective for nearly every individual aged 12 or older;
• COVID-19 vaccination is strongly recommended for anyone who is eligible;
• There are no medical conditions that would universally warrant a complete exemption from initial COVID-19 vaccination;
• A patient's or physician's individual moral objection to vaccination is not considered sufficient clinical rationale for exemption from COVID-19 vaccination; and
• COVID-19 vaccinations are safe and effective for pregnant individuals and their unborn babies, and mRNA vaccinations are recommended. Pregnancy does not warrant medical exemption from vaccination.

The CPSA Guidelines explain that if a physician provides an exemption that is inconsistent with the latest evidence they could be investigated for unprofessional conduct. For further clarity, the CPSA Guidelines advise that it would be considered "unprofessional" for a physician to issue a "blanket" or "lifetime" medical exemption from COVID-19 vaccination.

Guidance from Alberta Health Services

The CPSA Guidance states that all clinical decisions made by physicians with regard to COVID-19 vaccination exemptions must be based on the latest evidence and, in particular, the guidance of AHS's COVID-19 Advisory Group.

The COVID-19 Advisory Group released an interim report dated September 7, 2021, on the topic of medical exemptions for COVID-19 vaccination (the "AHS Report"). The AHS Report states there are no medical conditions that would universally support an absolute medical exemption for initial COVID-19 vaccination. In the following rare cases, an individual may be granted a medical exemption to COVID-19 vaccination, on a temporary basis, after a physician has completed a formal medical assessment process:

• Individuals with a documented severe allergic reaction (anaphylaxis) to a first dose of the vaccine or a known vaccine ingredient should consult an allergist to determine how to best get the vaccine;
• Individuals who have a current diagnosis of myocarditis (inflammation of heart muscle) or pericarditis (inflammation of the outer lining of the heart) should defer vaccination until these conditions resolve, and may require referral to a specialist;
• Individuals who were diagnosed with myocarditis or pericarditis following a first dose of COVID-19 vaccination, or had other severe rare adverse effects to the first dose, should have their second dose deferred until a specialist advises that it is safe to proceed; and
• Individuals who received antiviral monoclonal antibody therapy or convalescent plasma treatment for COVID-19 should have their vaccination deferred.

Even where these medical conditions are present, a medical exemption to COVID-19 vaccination will not necessarily be required in all instances. Where an exemption is granted, the AHS Report states that the exemption should be reviewed at least annually due to the evolution of medical knowledge and COVID-19 vaccine products.

Notably, neither the CPSA Report nor the AHS Report describe any psychiatric conditions or mental disabilities that would warrant a legitimate medical exemption to COVID-19 vaccination. The AHS Report mentions "needle phobia" only briefly to say that specialist support for assessment of severe psychiatric or psychologic contraindications that have not responded to standard management should be developed by AHS.

The AHS Report involved a review of medical policy and approaches from health organizations across a number of jurisdictions, including Health Canada, the Ontario Ministry of Health, the National Advisory Committee on Immunizations, the Centre for Disease Control in the United States and the National Health Service in the United Kingdom.

Legal Implications and Human Rights Considerations for Employers

Under Canadian human rights law, employers may have a duty to accommodate employees with a disability that prevents them from being vaccinated. An employer cannot impose an adverse effect, such as loss of income or employment, on an employee who is not vaccinated based on disability or other protected human rights grounds, unless the employer has accommodated to the point of "undue hardship".

The duty to accommodate does not mean that an employee with a legitimate medical exemption from COVID-19 vaccination need not comply with a COVID-19 vaccination policy at all. For instance, where a workplace has a "vaccinate or test" policy, and the medical exemption is limited to vaccination, presumably the employee can still comply with the testing option.

Although not legally binding when it comes to human rights law, the CPSA Guidance and AHS Report are the prevailing medical evidence and guidance in Alberta and may influence legal analysis with regard to accommodation requests. These documents suggest that there are very rare circumstances where an employee would have a disability precluding them from COVID-19 vaccination. The guidance also suggests that pregnant employees may not qualify for accommodation on the basis of gender (which includes pregnancy), given that COVID-19 vaccination is recommended for pregnant women.

The CPSA Guidance advises that individuals who do not qualify for a medical exemption but remain concerned about COVID-19 vaccination should consult resources provided by Immunize Canada, the National Advisory Committee on Immunization and Alberta Health to inform their personal decision making. Employers could offer similar guidance to employees who are vaccine-hesitant but do not have a legitimate medical exemption to COVID-19 vaccination.

Medical Exemptions from COVID-19 Vaccinations Will Be Limited

Alberta physicians have been instructed by their professional regulatory body that the circumstances where a medical exemption to COVID-19 vaccination may exist are very rare. Where a medical exemption exists, it may be temporary and require review and possible guidance from a specialist. Both the CPSA Guidance and AHS Report indicate that there are currently no circumstances where a permanent medical exemption from COVID-19 vaccination would be warranted.

Based on the guidance for Alberta physicians, we can infer that the number of employees with disabilities that warrant medical exemption from COVID-19 vaccination and the number of related accommodation requests under an employer's vaccination policy should be quite limited.

Employers should be aware that both the CPSA Guidance and AHS Report state that the evidence regarding COVID-19 vaccinations continues to evolve, and so the circumstances where medical exemptions may be warranted could change over time.

This article speaks only to medical exemptions for vaccination and some associated human rights law considerations, not to the other considerations when implementing a vaccination policy (e.g., privacy law, constructive dismissal, just cause). Employers should be aware of all of the legal risks and considerations before implementing policies related to COVID-19 vaccination. Our Labour and Employment team is available to assist employers as they consider their workplace policies and other issues in light of the continually evolving COVID-19 pandemic.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.