Canadian HR Reporter Weekly

3 Canadian HR Reporter, a Thomson Reuters business 2018 October 24, 2018 VOM policy, as did other hospitals. However, some hospitals, including St. Michael's, did not do so, necessitating the Kaplan decision. Expert opinion crucial It was the expert evidence that turned the tide for the ONA, said Lad Kucis, partner at Gardiner Roberts in Toronto. "ere was really insufficient evidence that asymptomatic or pre-symptomatic transmission was even happening," he said. "ere really wasn't any evidence that the transmission of the flu by non-symptomatic health-care workers was really a significant issue." e hospital was relying on one set of experts and the ONA was relying on another, said Ian Campbell, partner at Fasken Martineau DuMoulin in Toronto. "e experts disagreed, and this ultimately came down to the arbitrator listening to the evidence of both sides and deciding whose experts he preferred, picking apart the various positions put forward," he said. "It's notable arbitrator Kaplan goes through the expert evidence in great detail — and in some cases highlighting... picking apart the testimony brought forward by some of the expert witnesses, including finding significant issues of concern with the reports tendered — and I think that went a long way to supporting or leading to his conclusions, because the experts he was most critical of were the experts called by the hospital." e St. Michael's evidence was based on a 2014 report, cited by Kaplan, from the Toronto Area Health Sciences Network, consisting of 13 teaching hospitals. "e wearing of face masks can serve as a method of source-control of infected (health-care workers) who may or may not have symptoms. Masks may also prevent unvaccinated (health-care workers) from as yet unrecognized infected patients or visitors," it said. is grievance wasn't about saying yay or nay to the vaccine, said McKenna, as the association encourages members to partake in the vaccine, and many do. "However, we all know that that isn't the silver bullet — there's many other things that are helpful to prevent the spread of influenza," she said. ere are already policies in place that would address an influenza outbreak, according to McKenna. "When the medical officer of health determines that there's an influenza outbreak, then a whole procedure falls into place around protections for health-care workers and patients and their families that they care for, that's already there." And in the collective agreement, the language addresses what procedures or mechanisms are initiated when an outbreak happens, said McKenna. "We did that with employers right across the province. en, a few years ago, employers started to institute policies which spoke about if nurses or, in particular, health-care workers generally, on not partaking the influenza vaccine, that then they will have to wear masks anytime they're in a patient-care area." However, the VOM policy has nothing to do with influenza outbreaks, which are governed by a different protocol and not at issue in this case, said Kaplan in his arbitration decision. Looking ahead Arbitrators must focus on the merits of the case before them and what is written in the collective agreement, said Campbell. "Arbitrators are not bound necessarily by the decisions of other arbitrators because they're on the same level. And so while decisions rendered by other arbitrators, especially respected arbitrators, are normally given deference and often followed, it's not as if there's a precedent that must be followed," he said. "In the court system, when a higher level of court renders a decision, lower levels of courts are required to follow it; those same principles don't apply in this context." It is unclear whether or not the OHA or any hospital involved will appeal the case, said Kucis. "I think that hospitals will be a little bit more reluctant to try to impose these things without getting a little bit more evidentiary support for their position," he said. "In the near term, I think it's pretty clear that forcing nurses to wear masks when they're unvaccinated, symptom-free is unreasonable." "at's the key takeaway for now, and I don't anticipate that we're going to be seeing hospitals fighting this in the immediate future." For its part, the OHA said it will "continue to work with government and our partners across the continuum-of-care to ensure the highest level of safety during the upcoming flu season," said Hart. But the ONA will continue to fight against any future vaccinate-or-mask policies, said McKenna. "Some of (the hospitals) have done a U-turn and have agreed that they'll no longer institute such a policy (but) we haven't heard from all of the employers as of yet on what they're doing." There's many other things that are helpful to prevent the spread of influenza." Credit: one photo (Shutterstock) Hospitals will likely be more reluctant to impose vaccinate-or-mask policies on health-care workers without getting more evidentiary support for their position, according to a lawyer.

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