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University risks liability by not requiring on-campus COVID-19 vaccination proof: McGill law profs

Thursday, August 26, 2021 @ 11:18 AM | By Cristin Schmitz

As law schools in Quebec reopen for in-person classes without requiring students and staff to show they are vaccinated against COVID-19, 35 McGill University law faculty are warning that the situation not only exposes people on campus to “serious health consequences” from the deadly virus, it could also fail to meet an “emerging standard of care” and discriminates against people with disabilities — as well as people who are pregnant or immune-compromised — thus exposing McGill (and by implication other universities in Quebec) to the risks of civil liability and human rights claims.

At Quebec law schools, students and staff arriving on campus are required by the province to wear masks in classrooms and other common areas, but at press time, amid rising delta-variant COVID-19 infections in the province, particularly among the unvaccinated, the Quebec government had not mandated proof of COVID-19 vaccination. (A government-issued vaccine mandate currently applies to some people delivering health care in Quebec; however, provincial legislators are debating whether the mandate should be broadened to include other workers and sectors.)

In the absence of a government directive requiring proof of COVID-19 vaccination at post-secondary institutions, Quebec universities (and their law schools) are presently not requiring their denizens to prove they are vaccinated for COVID before accessing campus facilities (with some exceptions, such as the students in the medical faculty of the Université de Montréal.)

TRichard Gold, McGill University

Richard Gold, McGill University

McGill University law professor Richard Gold, an intellectual property expert, is spearheading representations from 35 members of his law faculty, including retired Quebec Court of Appeal judge Louise Otis, to try to convince the university to adopt a vaccine mandate for people seeking on-campus access at McGill.

Gold told The Lawyer’s Daily that senior officials at his university have for months declined to disclose the legal basis for McGill’s assertion that the institution doesn’t have the authority to require COVID-19 vaccination on campus. 

“So we tried to imagine what the legal basis was,” he said. That culminated in two open letters to the university, the latest on Aug. 23,  which hypothesize — and arguably demolish — possible justifications for the university’s insistence that it can’t impose a vaccine mandate on campus unless the provincial government tells it to.

“Our goal was simply to correct the record and to say to the university: ‘OK, we find no legitimate legal basis [for your position]. If there is one, the ball is in your court to tell us what it is,’” said Gold. “[We said] you can do this, and you kind of need to explain to us, and everybody else that’s part of the McGill community, why you’re not [imposing] proof of vaccination on those who wish to participate in on-campus activities."

Gold said there is nothing unusual about the notion of a vaccine mandate. “Just like if you want to drive, and if you need glasses to be able to safely drive, your driver’s licence will have a condition that you wear your glasses while you drive,” he said. “That’s kind of what we were promoting — plus exemptions for religion and medical reasons — the human rights exemptions, … and they never responded directly to us.”

Responding to public criticism as well as to an on-line petition aimed at reversing McGill’s decision not to mandate proof of vaccination as a pre-condition to participating in campus activities, a McGill University spokesperson said in a statement to media this month that “at this point in time, our view is that unless the government mandates vaccination, in the Quebec context we cannot legally require it.”

In a subsequent  Aug. 19 letter to the entire McGill community, McGill Provost and Vice-Principal (Academic) Christopher Manfredi elaborated, after the submissions challenging that stance from within McGill’s law faculty, that people have the right to refuse to undergo a recommended medical procedure (including vaccination), unless otherwise provided for by law.

“In the absence of specific legal authorization, mandatory vaccination can be justified legally only if other reasonable means are insufficiently effective to ensure the health and safety of the community,” wrote Manfredi, who pointed to measures implemented by the university, including mandatory masking , “optimizing ventilation, and other means” (but not mandatory physical distancing within classrooms).

Manfredi said McGill is “confident” in the health and safety measures it has put in place, noting that “accommodations are available for vulnerable students and employees with appropriate medical documentation.”

However McGill’s rationale for not adopting a “proof of vaccine policy” was legally deconstructed by two detailed written submissions from members of the university’s law faculty, who asked top McGill officials to reconsider in light of the fiduciary responsibilities of the university’s board of governors, including “to avoid exposing” McGill to a serious risk of liability.

“We will be re-opening  the campus in the midst of a surge in the highly infectious Delta variant,” notes the  Aug. 23 five-page open letter signed by 35 current and retired law faculty who called Manfredi’s statement “unpersuasive and factually inaccurate.”

The university’s current policy “discriminates against disabled students, staff and faculty — for example those with immunosuppression or other medical conditions that render a SARS-CoV-2 inflection more serious (even if vaccinated) or that render the vaccine less effective,” the law professors wrote. “Such discrimination is contrary to art. 10 of the Quebec Charter of Human Rights and Freedoms. The university not only places these community members at higher risk compared to those without such disabilities, it further discriminates against them by forcing them to disclose highly confidential and personal health information in order to receive exemptions from participating in on-campus activities such as labs where they could be exposed to the virus. Other students — notably those who have not been vaccinated — do not bear this burden.”

The professors contend that requiring students, staff and others on campus to disclose their vaccination status is, by contrast, “far less invasive of personal privacy.”

Their letters urge McGill to adopt a policy requiring (1) proof of COVID-19 vaccination by all students, faculty and staff seeking access to the campus; and (2) requiring frequent COVID testing, the wearing of masks “and other health protocols as necessary” for individuals seeking campus access who are not vaccinated on medical or other grounds recognized by the Quebec Charter.

“We have concluded that the university not only has the legal authority to institute such a policy but has a legal obligation to do so,” the professors said, citing an “emerging standard of care” at universities which have adopted various mandatory vaccine policies, such as the University of Ottawa, Harvard and Yale.

“The adoption of the proposed requirement is a reasonable, and now common, practice on university campuses, designed specifically to reduce the risk of harm to those living with a disability or illness such as a suppressed immune system. Indeed, one of our [law] faculty’s own doctoral students suffers from such a condition and came dangerously close to dying from COVID-19 this year,” the law professors said.

They also argue that the university’s lack of a “proof of vaccination” policy with respect to COVID-19 particularly discriminates against pregnant women — who are at higher risk from COVID infection — as well as subjecting parents with unvaccinated children to “an unacceptably higher level of risk than that faced by those without young children”, contrary to art. 10 of the Quebec Charter.

Failing to take all reasonable steps to prevent an outbreak at McGill, including a vaccine mandate, also exposes the university to the risk of civil liability should an unvaccinated person infect a student, staff member or faculty member who either suffers serious harm, or who infects another causing serious harm, they said. “We are putting on the record this foreseeable risk and believe the university is in danger of being at fault for not acting to reduce it. Given the danger of liability, we believe that the [McGill] board of governors, balancing risks and benefits, has a fiduciary obligation to adopt the proposed requirement,” they conclude.

Illustration by Chris Yates/Law360

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