Canadian Employment Law Today

'Vaccinate or mask' policy found to be unreasonable Risk to patients not proven enough to trump employee privacy: Arbitrator BY PATRICK GANLEY AND LISA BOLTON F lu season is upon us and many em- ployers are paying close attention to the recent arbitration decision in Sault Area Hospital v. Ontario Nurses Association. e case involved a "vaccinate or mask" policy which required healthcare workers to wear surgical masks when working during flu season if they had not received the flu vaccine. e policy was implemented at the Sault Area Hospital in Sault Ste. Marie, Ont., and approximately 30 other hospitals in the province. e Ontario Nurses Association (ONA) grieved the policy as an unreasonable ex - ercise of management rights and a breach of employee privacy rights. e hospital defended the policy as a valid patient safety measure that reasonably balanced the in - terests of protecting against a potentially deadly and infectious disease, with employ- ee personal autonomy and privacy. e arbitrator found the policy was un- reasonable in the circumstances because the weight of scientific evidence was not sufficient to warrant requiring unvaccinat- ed workers to wear masks for six months. Without a justifiable patient safety purpose, the arbitrator found the policy operated to coerce immunization and undermine the collective agreement right of healthcare workers to refuse vaccination. It's important to note this decision was not about the right to require a health care worker to be vaccinated. Rather, it was about whether a policy requiring an unvac - cinated health care worker to wear a mask was inconsistent with the collective agree- ment. e arbitrator found the mask re- quirement was inconsistent with the collec- tive agreement on the basis there was not a justifiable patient safety purpose. Had there been a justifiable patient safety purpose, the decision may have been different. e collective agreement between the Hospital and ONA required healthcare workers to receive the flu vaccine unless a worker chose not to, in which case should there be an outbreak in the hospital, the worker could be placed on unpaid leave during the outbreak; or, if there was a medi - cal reason why the worker could not receive the vaccine, the worker would be reassigned during the outbreak. On Jan. 1, 2014, the hospital implement - ed the policy which, among other things, stated as follows: "All persons carrying on activities at [the hospital], which includes employees, stu - dents, undergraduate and post-graduate medical trainees, physicians, volunteers and contract workers, must receive annual influenza immunization or wear a surgi - cal/procedure mask during the influenza season (typically from November to April) when in a patient care/clinical area, or when engaged in work-related patient interac - tions in any area of the hospital." Shortly thereafter, the hospital also re- quired all vaccinated healthcare workers to place a sticker on their ID badge "indicating their status." Any healthcare worker without a sticker would be required to wear a mask even if they had received immunization. is would enable a patient to "immediately identify those who have taken this extra precaution against the flu." e position of the hospital e Ontario Hospital Association (OHA) and the hospital defended the policy as a valid patient safety measure, the prima- ry purpose of which was to prevent flu transmission from unvaccinated health- care workers to patients. e OHA ar- gued the policy was reasonable in light of "earlier disturbing critical incidents;" the low rates of immunization among health- care workers — roughly 42 per cent — and undisputed expert evidence sup- porting vaccination as the best method to prevent the transmission of influenza. ONA's position ONA's response was three-fold: First, the policy was implemented with- out sufficient consultation and was in- consistent with concerns raised by the hospital's own chief of medical staff, and consultants who concluded the policy was "very punitive," lacked scientific sup- port, and had been instituted primarily to increase immunization rates as "few people would want to wear a mask for 6-7 months." Second, the scientific evidence suggest- ed the use of masks was "negligible in the combat of influenza transmission by or to healthcare workers and patients." As evi- dence of this (among other evidence), ONA pointed to the hospital's failure to reconsid- er the merits of the policy when it became clear the 2014-2015 vaccination would not be as effective as hoped in combating the most common strain of influenza that sea - son. If masks were as effective as the hos- pital maintained they were, this "mismatch year" should have resulted in the mask- wearing requirement being imposed on all healthcare workers that season. According to ONA, "an illogical policy is not a reason - able policy". ird, the policy violated employee pri- vacy rights as it was accompanied by a hos- pital-wide posting explaining that masks were to be worn by unvaccinated employees — indirectly resulting in compulsory disclo- sure of personal medical information. e true purpose of the policy was to drive up vaccination rates through coercive means, undermining the employee's right to refuse vaccination, argued the ONA. e decision Even accepting vaccination was the best method currently available to prevent the transmission of influenza, the arbitrator found the policy unreasonable for the following principal reasons: • Improper purpose. e policy sought to prevent hospital-acquired influenza by increasing vaccination rates. However, re- quiring the use of masks as a consequence for refusal to vaccinate was not a useful method to protect patient safety. • Lack of evidence. ere was "scant sci - entific evidence" the use of masks was IT'S A COMMON conundrum for employers who have significant safety concerns in the workplace: How many precautions can they take without infringing upon employee rights? How much safety risk does there have to be in order to infringe upon those rights? It's an issue safety-sensitive employers face and now it's come to light in medical environments where the safety of patients as well as employees is a concern — particularly when communicable illnesses like the flu are around. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2016 CASE IN POINT: PRIVACY

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