On September 8, 2015, Arbitrator James Hayes released his decision in Sault Area Hospital v. Ontario Nurses' Association (“ONA”), striking down the Hospital's “Vaccinate or Mask” (the “VOM Policy”).
The VOM Policy, which was not unique to the Hospital in question, required healthcare workers to wear surgical/procedure masks each year throughout the flu season if they had not received a vaccination for influenza that year. The ONA grieved the VOM Policy was an unreasonable exercise of management rights and a breach of employee privacy rights.
The Arbitrator examined the competing medical evidence and concluded that the VOM Policy was introduced at the Hospital for the purpose of driving up vaccination rates. Masks were cast as a consequence for failing to vaccinate. He also found that the weight of scientific evidence said to support the VOM Policy on patient safety grounds was insufficient to warrant the imposition of a mask-wearing requirement for up to six months every year.
The Arbitrator noted that there was limited data on the use of masks and respirators to reduce the transmission of influenza. In his view, none of the studies established a conclusive relationship between mask/respirator use and protection against influenza infection. He characterized the evidence in support of the VOM Policy as “scant”.
Absent adequate support for the freestanding patient safety purpose alleged by the Hospital, the Arbitrator concluded that the VOM Policy was an unreasonable exercise of management rights, that it operated to coerce influenza immunization, and thus, that it undermined the collective agreement right of employees to refuse vaccination. Given his conclusion, he did not decide whether the VOM Policy was also a breach of nurses' privacy rights, but stated, in obiter, that vaccination information about an employee that is collected and maintained for the purpose of implementing a work related policy (and not for purpose of providing health care to the employee) is excluded from the application of relevant privacy legislation.
The Arbitrator stressed that the case was not about the merits of influenza vaccination and that it was not intended to dissuade anyone from the benefit of annual influenza immunization.
In reaching his decision, the Arbitrator expressly declined to follow a 2013 British Columbia decision that had found a similar policy to be a reasonable exercise of management rights. The result is that there are now competing decisions on whether hospitals may implement VOM policies. Further cases may yet wrestle with this important issue.