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Essential workers, educators and the vaccine | Marvin Zuker

Thursday, January 07, 2021 @ 11:06 AM | By Marvin Zuker

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Marvin Zuker %>
Marvin Zuker
For some of us COVID-19 is a reminder of other times.

Polio was the pandemic of the early 1950s. Then, as now, doctors and nurses and scientists focused on treatments while waiting for a vaccine. Temporary isolation units were common. Like COVID-19, polio greatly affected the lungs. Outside a hospital room sat an iron lung to help the polio patient breathe.

And then in 1955, the vaccine that Dr. Jonas Salk had developed for the virus of the time was introduced. Before then, in 1952, nearly 60,000 children in the U.S. became infected, many died, and many were paralyzed for life. Franklin Delano Roosevelt, who would become president of the United States, would hide his disability that resulted from the virus.

I can still vividly recall my days as a part-time sports reporter for the Toronto Star being sent to interview a few professional wrestlers on occasion in the early 1960s, including “Whipper” Billy Watson. Hand in hand Whipper was synonymous with the Easter Seals “Timmy” who used to sit on Whipper’s knee and who represented all children with physical disabilities, most of whom had contracted polio.

To quote Pope Francis in his Christmas 2020 address: “We cannot …. allow the virus of radical individualism to get the better of us and make us indifferent to the suffering of other brothers and sisters. I cannot place myself ahead of others, letting the law of the marketplace and patents take precedence over the law of love and the health of humanity.”

How should we distribute the COVID-19 vaccine in 2021? Who and what will determine who dies and who lives? Setting priorities should depend on the impact of essential services. If essential services are affected because people are getting the virus, then the workers of these essential services should be near the front of the line — including teachers, the gateway to education and our precious infrastructure.

Think about the cutting off of so many of our in-person schools. This is an incredible price our children are paying, the loss of learning, the loss of social and emotional development and more and more vulnerable children not even in school.

On Dec. 20, 2020 the Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices (ACIP) issued recommendations as to who should receive the vaccine after long-term care patients and front-line health care workers: “Phase 1b: persons aged ≥ 75 years and non-health care frontline essential workers; Phase 1c: persons aged 65-74 years, persons aged 16-64 years with high-risk medical conditions, and other essential workers.”

For purposes of the ACIP’s recommendation, the following essential workers are considered frontline: “… those who work in the education sector (teachers and support staff), as well as child care workers ... . These recommendations have been adopted by the CDC Director and will become official once published in MMWR [Morbidity and Mortality Weekly Report].”

Nursing homes tragically are ground zero of COVID-19, accounting for some 40 per cent of all COVID-19 deaths in the U.S. Their residents and staff, as already indicated, must be at the front of the line for the vaccine.

Next in line after health workers, respectfully, our educators. Statistically nearly a third of the education workforce is over 50 and thus may be at a higher risk for a more serious infection if they were to contract COVID-19.

Children are our silent spreaders, rarely knowing they are infected because they may be asymptomatic. Add to that poor ventilation in schools and the lack of proper protective and sanitizing equipment and that equals great risk. Who are better trusted messengers of any new vaccine than our educators and staff?

Teachers are our caregivers. They keep our children safe and of course they help them learn. More vaccinated teachers would mean fewer closed schools and less distant learning.

Currently, more students are falling behind. And what about children with no in-home caregiver? This situation creates the disadvantaged student and the likelihood of hundreds and hundreds of children, much less privileged, being rejected when they apply to post-secondary schools.  

To quote Chief Justice Earl Warren’s opinion in part in Brown v. Board of Education of Topeka 347 U.S. 483 (1954), “Today [education] is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.”

Mandatory vaccination

What should Ontario do? What should be our pandemic roadmap?

I would legislatively mandate that all teachers and related staff be required to be vaccinated by July 1 subject to receiving an approved medical exemption and/or disability or religious accommodation, similar to the Immunization of School Pupils Act of Ontario, which of course is limited to children. I would see this legislation within the purview of the province to protect our public health, education and safety.

The proposed legislation would only apply to those who actually access school property for work purposes. It would not apply to those working exclusively in distance learning. Is there precedent? Yes.

Jacobson v. Massachusetts 197 U.S. 11 (1905) is the seminal case regarding the authority to institute a mandatory vaccination program. The U.S. Supreme Court upheld a law that gave municipal boards of health the authority to require the vaccination of persons over the age of 21 against smallpox. Starting with the smallpox vaccine, vaccines have been used to halt the spread of diseases for more than 200 years. (See Donald A. Henderson and Bernard Moss, “Chapter 6: Smallpox and Vaccinia,” Vaccines 74, 75 (Stanley A. Plotkin and Walter A. Orenstein eds., 3rd ed. 1999)).

Teachers need to feel physically safe. They need our support. They need to be respected and recognized and yes, honoured for what they do. We must do everything possible for them to succeed.

A mandated vaccine will reduce our already overburdened health-care system. Failure to do so will create a far greater harm from the risk of contracting and transmitting the flu during the COVID-19 pandemic. To quote one writer, “Mandatory vaccination is our fire hose.” 

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is associate professor at Ontario Institute for Studies in Education/University of Toronto, where he teaches education law. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.

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