As the flu season approaches, hospitals in Ontario have a new decision to ponder from an arbitrator who says a policy of “vaccine or mask” for nurses was contrary to the Ontario Nurses’ Association collective agreement because it was unreasonable.
In Sault Area Hospital v. Ontario Nurses’ Association, the ONA won a precedent-setting award against the hospital, which goes against a 2013 British Columbia decision that had found a similar “vaccinate or mask” policy to be a reasonable exercise of management rights.
In this case, the ONA had grieved the policy as an unreasonable exercise of management rights and a breach of employee privacy rights. Arbitrator James Hayes held that there was insufficient medical evidence that asymptomatic individuals play a significant role in the transmission of influenza or that masks reduce the transmission of influenza.
The 136-page decision demonstrates the issue was hotly contested by all sides including the Sault Area Hospital, Ontario Hospital Association, and the Ontario Nurses’ Association, with numerous experts including leading infectious disease professionals called to provide their opinions over 18 days of hearings.
“I think hospitals in Ontario really do have to pay attention to this case and its implications,” says Elyse Sunshine of Rosen Sunshine LLP.
“I think the difference between this case and the B.C. case is the weight placed on the evidence by the arbitrator here. Sometimes, these cases are won or lost on the evidence. Obviously the arbitrator here placed greater weight on the evidence of the Ontario Nurses’ Association. I think hospitals could expect that if their policies are the same as the Sault Area hospital, they will face a similar type of issue and resistance.”
While the arbitrator didn’t directly address the privacy issue, the ONA argued the policy violated employee privacy rights because a hospital-wide posting explained to the public that masks were required to be worn by unvaccinated employees.
“The mask requirement amounts to compulsory disclosure of personal medical information,” Hayes wrote.
“Presently, whether someone gets vaccinated or not is part of their personal health information,” says Sunshine. “By making them self-identify, you are breaching their privacy.”
Sunshine says hospitals will have to continue to look at ways patients can be protected, particularly during vulnerable times such as the flu season.
“Until such time as there is good evidence to support doing a particular ‘support,’ it’s not reasonable, according to this case, to ask health professionals to submit to unpleasant things,” she says.
The case seemed to turn on the fact the arbitrator decided there was insufficient medical evidence that asymptomatic individuals play any significant role in the transmission of the flu or that masks reduce the transmission of the flu, says Lad Kucis, a partner with Gardiner Roberts LLP.
“It is not surprising that he concluded that a policy requiring non-immunized hospital workers to wear masks was unreasonable — especially given that there was no outbreak situation and that workers had to wear the masks at all times,” says Kucis.
“It appears clear the hospital was using the threat of the policy as a coercive attempt to increase the rate of immunizations amongst hospital workers — which was not well received by the arbitrator,” he says.
The decision raises a number of important legal issues in the area of health policy, and labour and administrative law, says Gillian Hnatiw, of Lerners LLP.
“I do think hospitals are going to have to take a careful look at their policies in light of this decision,” she says. “Their fundamental goal of balancing patient safety with their health care staff personal autonomy and privacy has to remain at the core of their policy. The hospital argued it was one of a range of reasonable options open to it and the arbitrator just didn’t accept it.”
The ONA argued the hospital failed to reconsider the merits of the vaccine-or-mask policy when the extent of the “extreme mismatch” of the influenza vaccine with the most common 2014-2015 strain of the flu became known early in the flu season.
Hayes wrote: “It did not then decide to mask all employees whether or not they had been vaccinated. That failure provides a further demonstration that the Policy is inherently illogical: an illogical policy is not a reasonable policy.”
The arbitrator noted there appeared to be no consultation or discussion with respect to the policy.
Hnatiw says hospitals will continue to wrestle with how to balance the competing issues of autonomy and privacy versus patient safety.
“Perhaps there are ways to ensure the policy is more narrowly and directly tied to the underlying purpose, which I think remains a valid one in that hospitals are still going to have to be vigilant around taking all reasonable steps to ensure patient safety,” she says.
Kucis says he wouldn’t be surprised if future cases around this issue bring more compelling medical justification to suggest these practices do curtail the spread of influenza or other diseases.
“It would have been interesting to see if a different result would have been reached if the medical evidence in favour of masking was stronger, or if it involved an outbreak situation; or if the disease at issue was more dangerous,” he says.
