By Michelle Stephenson
A recent Arbitrator’s decision, in Sault Area Hospital and Ontario Nurses’ Association, determined that a policy requiring staff who did not receive a flu vaccine to wear surgical masks during flu season was unreasonable.
After a low number of staff at the Sault Area Hospital in Ontario had received flu vaccines in 2013, senior management created a policy requiring all health care workers at the hospital to either receive annual flu vaccinations, or wear a surgical mask throughout flu season (typically November to April) whenever they were in a patient care area or during patient interactions.
The policy was created without consultation with infection control consultants or the hospital’s Infection Prevention and Control Committee. When it was announced, several senior staff members raised concerns, including those about the lack of evidence supporting the effectiveness of masks in preventing transmission of the flu.
Nevertheless, the policy came into effect on January 1, 2014 in the Sault Area Hospital, as a result of their goal of 70% vaccination of staff not being reached. Those who had received the vaccine were to wear an identifying sticker on their ID badge, all others were to wear the prescribed masks.
In response, the Ontario Nurses Association submitted a grievance, challenging the policy on the basis that it was an unreasonable exercise of management rights, a breach of employee privacy rights, and a breach of the collective agreement, which provided that nurses had the right to refuse any vaccination.
Both sides presented expert evidence at the hearing, with significant disagreement over whether increasing immunization of staff lowered patient mortality, whether unvaccinated staff posed a risk of transmitting the disease to patients when they were asymptomatic themselves, and whether the masks were, in fact, effective in reducing the transmission of the flu.
The Arbitrator ultimately allowed the grievance. While it was agreed that influenza is a serious disease and that the hospital is obligated to take all reasonable precautions to protect its patients’ health, this particular precaution was not reasonable. It was found that the hospital’s dominant, and likely sole, purpose in establishing the policy was to use it as a coercive tool to increase immunization rates, rather than a legitimate attempt to protect patients and accommodate staff who did not wish to be vaccinated.
Between this fact and the “less than convincing” evidence supporting the efficacy of the policy, the Arbitrator found the policy did not strike a reasonable balance between employee and management rights and allowed the grievance.