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Nelligan News
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We’ve all heard stories of people who went to the emergency room with a stomach ache and left with a cold. One of the many challenges of going to a central location to get medical help is the risk of contracting something from someone else seeking medical help or, in certain situations, from the people providing that medical help.

While the goal of reducing this risk is laudable, in the recent decision of Sault Area Hospital and Ontario Nurses’ Association, arbitrator James Hayes reminded employers that any rules imposed with this goal in mind must nevertheless be reasonable if they are to be upheld.

In Sault Area Hospital, Arbitrator James was tasked with determining whether a unilaterally imposed hospital policy requiring health care workers to “vaccinate or mask” was a reasonable exercise of management rights. The policy in question required healthcare workers to wear surgical masks if they chose not to get the flu vaccine throughout flu season (which typically lasts from November to April).

The policy, first implemented by the hospital in January of 2014, required that staff who had been immunized to be identified by a sticker on their ID badges, and those who chose to either not be immunized or not wear the sticker were required to wear a mask. Notices were posted throughout the hospital advising patients and visitors of the policy. As a result, guests at the hospital would know that health care workers who were wearing masks had chosen not to be vaccinated. There’s nothing quite like having your life decisions literally showing on your face!

The arbitration hearing was rife with expert evidence about three main issues:

1.      Whether increasing immunization rates protected patients

2.      Whether unvaccinated staff who were asymptomatic posed a risk of transmitting the flu

3.      Whether masks were even effective in reducing the transmission of the flu.

A review of the expert evidence led Arbitrator Hayes to the conclusion that there was insufficient evidence that asymptomatic individuals posed a risk of transmitting the flu or that masks were effective in reducing flu transmission. Ultimately, Arbitrator Hayes found that the dominant and likely sole purpose of the “vaccinate or mask” policy was to increase immunization rates rather than to protect the health of its patients.

In finding that the policy was in fact a “coercive tool”, Arbitrator Hayes wrote:

In short, the laudable goal of preventing hospital-acquired influenza by enhancing vaccination rates was advanced by adoption of a VOM policy, what I see as a colourable means of accomplishing a legitimate objective. From the beginning masks were cast as a ‘consequence’ for failure to vaccinate. They were not advanced at [the hospital] as useful instruments for patient safety in and of themselves.

Arbitrator Hayes found that it was unreasonable to ask unvaccinated employees to wear an unpleasant mask for an entire shift, virtually everywhere, irrespective of the individual patient and that patient’s presenting circumstances. He also found that it breached the Ontario Nurses Association collective agreement, which contained a clause providing that nurses have the right to refuse any required vaccination.

It is worth noting that in the only other Canadian case on this issue – the 2013 British Columbia decision Health Sciences Association v. Health Employers Assn. of British Columbia, 237 L.A.C. (4th) 1 – the BC arbitrator came to the opposite conclusion. Arbitrator Diebolt found that a “vaccinate or mask” policy was a reasonable exercise of management rights. The primary reason for the difference in these two decisions appears to be the quality of the expert evidence presented during the arbitration proceedings.

One thing is clear: the goal of balancing patient safety with the personal autonomy of healthcare workers remains a live issue in Canada. Any attempts by employers to pursue this goal will require a clearer link between the objective and the means than existed in this case. In short, if an employer wants to require that its employees wear masks, it will need to be able to prove that they are effective.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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