An Ontario Human Rights Commission COVID-19 Accommodation Policy for Code-Protected Individuals and Groups — Long Overdue?

My Reply to the Chief Commissioner, OHRC, after our request for a Section 31, OHR Code Inquiry was denied.

November 8, 2022

Honourable Chief Commissioner,

Ontario Human Rights Commission

Patricia DeGuire

Via email

RE: Consideration for a COVID-19 Accommodation Policy for Code-Protected Individuals and Groups

Dear Chief Commissioner,

Thank you for reviewing our request for a Section 31 Inquiry and your November 4, 2022 letter.

Obviously, we are disappointed with your decision but appreciate your review. I would respectfully request that the Commission considers developing a specific policy for accommodating Code-protected, COVID-19 vulnerable persons.

Sars-CoV-2 is an airborne pathogen unlike any other we have confronted in the past century. It is clear it is contributing to ongoing mortality, presently the third leading cause of death in North America (Professor Tara Moriarity, Associate Professor, Faculties of Medicine and Dentistry, University of Toronto). Accommodation of Code-protected individuals is not intuitive. Many physicians have not been able to characterize suitable accommodations for persons identified at increased risk.

The morbidity from COVID-19 infection may be severe. The ramifications of long COVID become clearer each week. The risk of cardiovascular disease increases by at least 60% after the first COVID-19 infection. Sudden cardiac deaths in young adults are also increased. The risk of ischemic stroke (lack of blood supply) in younger patients has also been recognized. This is most unusual for a respiratory virus. It’s clear it is not a typical cold or flu virus. It causes small and large blood vessel inflammation (vasculitis), direct infection of organs (brain, lungs, kidney and liver), autoimmunity, and chronic disability.

The more severe the infection, the greater the risk of death and debilitating long COVID symptoms from organ involvement. More frequent infections are also associated with these risks.

The problem herein: Code-protected immunocompromised persons and the elderly are more often in these latter risk groups. They contract COVID-19 more often and have poorer responses to vaccinations. Seniors continue [to] be impacted more severely than other groups, with respect to mortality. Therefore, I implore the commission to develop a policy on accommodating COVID-19 vulnerable persons. Children’s hospitals in Ottawa, Toronto and Kingston are facing an unprecedented crisis. Hospital CEOs have publicly pleaded for masking indoors. The heavy COVID-19 caseload pre-existing from the summer, with constant pressure on all hospitals, has been complicated by a severe, early influenza season, and a severe RSV outbreak. The Chief Medical Officer of Health predicted this possibility in August 2022. We must work to curb transmission. The Chief Medical Officer of Health should have acted by now, according to the precautionary principle and the wise words of the Honourable Mr. Justice Archie Campbell. Dr. Moore has indicated he would only act with the permission of [the] government (August 31, 2022 news conference). This is contrary to the HPPA and the description of the Act, as announced by Premier Dalton McGuinty in 2004. [The]Independence of the Chief Medical Officer of Health in managing infectious disease outbreaks was stressed as [the] purpose for legislative changes in a news release from the Ontario government.

Parents of children with disabilities, and education employees have contacted me for guidance after their children or themselves were denied accommodations. Some have reported their family physicians were not willing to provide a letter to the employer/school to request [an] accommodation. They have had to approach other physicians or healthcare providers.

A policy that identifies Code-protected individuals who are most vulnerable to COVID-19, and the necessary or appropriate accommodations (with medical evidence) would be extremely helpful. Code-protected individuals could refer to OHRC policy rather than filing a Tribunal complaint. It would be helpful to provide a list of Code-protected individuals as a guide for physicians/healthcare workers who have been requested to provide letters to their patients.

Ie. Age > = 60 years; Immunocompromising conditions, autoimmune conditions, recent cancer diagnosis, intellectual disabilities etc. noting it is not an exhaustive one

COVID-19 is caused by a novel zoonotic, airborne pathogen that frequently mutates. It will continue to present significant health problems and strain our healthcare system until a pan-coronavirus vaccine is developed or a therapeutic drug becomes available to all persons at risk. Paxlovid is not indicated for children under age 12, has severe drug interactions, and is restricted to those at greatest risk of poor outcomes. Newer variants are may become resistant at some point.

On a personal note, I contracted COVID-19 three weeks ago from my partner who is an education worker — He trains school bus drivers and operates a wheelchair-accessible route that transports children with disabilities. His workplace no longer requires fellow bus drivers to mask. The Ministry of Education ceased providing N95 masks to school bus drivers this fall. Of course, the majority of children are unmasked and no longer isolating when ill or COVID-19 positive. He contracted illness despite wearing N95 masks. I caught it from him while on vacation, a day after he tested positive. I became very ill just hours after turning positive. As I described previously, I am an immunocompromised individual (primary immunodeficiency). I was fortunate to receive Paxlovid on the same day. Edward developed the typical autoimmune inflammatory respiratory syndrome on day 7. He was monitored with oximetry for a few days (despite 4 vaccinations) and continues to cough 3 weeks later. I recovered quickly then developed a severe bilateral ear infection several days after completing Paxlovid. I have hearing loss, severe tinnitus, and a ruptured tympanic membrane. This is increasingly being described with COVID-19 infections (about 5% of new infections — hearing loss and/or tinnitus). I note my symptoms did not improve with antibiotic therapy making a viral cause more likely. I am waiting for an otolaryngology consultation. My partner is resigning from his job this week, which he thoroughly enjoyed, in part because of ongoing health risks, and the chaos caused by a severe bus driver shortage. We followed the advice of the Chief Medical Officer of Health and it wasn’t enough, as we stressed in our September 13th, 2022 brief. I implored this government to consider the poor ventilation in schools and on school buses in August 2020 and provided a TV interview for CBC Windsor. The airborne nature of the spread was already described while our province was recommending useless plexiglass barriers and hand sanitizer.

What type of policy am I suggesting? One which mitigates COVID-19 transmission at school or work and permits the Code-protected person to:

1-Attend in-person schooling (JK to Grade 12) according to the existing OHRC policy on education, or

2-Work at home if possible, or work in the office with appropriate mitigation strategies.

Accommodations could be based on a consensus of expert recommendations. I am confident Faculty from the Dalla Lana School of Public Health, University of Toronto, would be happy to provide a list of vulnerable individuals who should be considered Code-protected (at increased risk from COVID-19 infection) and a list of suitable persons who might contribute to an accommodation policy, including Engineers who specialize in building ventilation and air filtration. Some are signatories to our September 13, 2022 brief.

Some sample Accommodations (from this non-expert):

1. Ventilation: The guideline would suggest a maximum CO2 level during classroom teaching, near the end of a session.

2. Filtration: HEPA filtration/Merv 13 with UV light viral sterilization would be a recommendation (or equivalent)

3. Masking: N95 masks are provided to the Code-protected individual and group masking (in a single classroom) for fellow classmates or workers who share the same immediate office space (At least level 3 surgical masks or cloth mask with L2 surgical mask). Alternative accommodations for workers could include remote work from home or working in a segregated room/private office with its own ventilation/filtration unit.

4. Testing to stay if co-workers or classmates are feeling ill. This would require the classroom or the workplace to keep COVID-19 tests on hand.

5. Isolating for at least 5 days after testing positive.

Obviously, the most impactful intervention is a robust public health response, including a return to indoor masking and isolation for at least 5 days after turning positive. However, even with masking, the medical evidence continues to support ventilation and filtration standards to reduce viral transmission risks. These measures would go a long way to minimize the risks to Code-protected persons. One way masking is ineffective for Code-protected individuals, especially when some in the same room are actively shedding virus.

Thank you for considering my feedback and for your ongoing commitment to the welfare of Code-protected Ontarians.

Sincerely,

Christopher Leighton MD, FRCPC

Radiation Oncologist (ret)