In a decision issued September 8, 2015 Ontario Arbitrator James Hayes struck down the Sault Area Hospital’s policy requiring health care workers to wear a mask if they failed to receive a flu shot. Arbitrator Hayes ruled that the policy was an unreasonable exercise of management rights. In the decision the arbitrator finds that there was “scant” evidence to prove that unvaccinated health care workers posed a significant risk to patients. He also found that there was insufficient data to find a conclusive relationship between mask use and protecting patients against influenza.

In 2013 low rates of influenza immunization by staff caused senior management of the Hospital to issue a new policy which required that all health care workers receive annual influenza immunization or wear a surgical/procedure mask during the flu season which lasted from November to April. The masks were to be worn when workers were in patient care/clinical areas, or when engaged in work-related interactions in any area of the Hospital. The Ontario Nurses Association (ONA) challenged the policy alleging it was an unreasonable exercise of management rights, a breach of employee privacy rights, and a violation of the collective agreement which provided that nurses had the right to refuse any required vaccination.

A the hearing each side presented extensive expert evidence. The experts agreed that influenza was an acute respiratory infection that could lead to serious, sometimes fatal, complications in vulnerable persons and they also agreed it was transmitted primarily through the air. Lastly they agreed that vaccination is the best available method to prevent transmission. The experts disagreed, however on the three main issues: (i) whether increasing immunization rates protected patients; (ii) whether unvaccinated workers posed a risk; and (iii) whether masks were effective in reducing transmission.

The Arbitrator held that the imposition of a mask requirement without sufficient justification which related to the use of the masks, was the same as imposing a penalty upon nurses for choosing to exercise the right not to be immunized. Because there was not sufficient evidence to support the patient safety purpose alleged, the policy was found to be unreasonable and in breach of the collective agreement.

Only one other Canadian decision, Health Sciences Association (Robert Diebolt, Q.C., October 23, 2013), has been issued dealing with seasonal immunization policies like this. In that case the Arbitrator was persuaded by the expert evidence presented by the employer that immunization of health care workers reduced the transmission of influenza to patients and that mask were effective in preventing transmission of the virus. The Arbitrator agreed in that instance that the policy struck a reasonable balance between patient safety and employee’s privacy rights, finding that the employer had chosen the least intrusive means to advance its interests.

Ontario Nurses’ Association v. Sault Area Hospital – James Hayes, September 8, 2015