Can hospitals implement policies that require nurses to get a flu shot or wear a mask? An Arbitrator in Ontario says no. This has left about 30 Ontario hospitals who implemented such policies unable to enforce them.

The test case involved Sault Area Hospital (“SAH”) in Sault Ste. Marie. The hospital introduced a “Vaccinate or Mask” (“VOM”) policy that required healthcare workers to wear surgical/procedure masks throughout the flu season if they did not receive the vaccination for influenza. The grievance alleged that the policy was an unreasonable exercise of management rights and a breach of employee privacy rights. After finding that the VOM policy was instituted to increase vaccination rates and that there is insufficient evidence to support its introduction, Arbitrator Jim Hayes held that the policy failed to “comply with the KVP principles and so [constituted] an unreasonable exercise of management rights.”

In light of his conclusion that the policy was an unreasonable exercise of management rights, Arbitrator Hayes found it unnecessary to address the privacy argument. However, in obiter, he accepted the argument from the Ontario Hospital Association and SAH that “the information at issue would have been excluded from protection under the Personal Health Information and Privacy Act” because it was collected and “maintained for a purpose other than the provision of health care to those employees.” He similarly found that the information was excluded from protection under the Freedom of Information and Protection of Privacy Act because the information “relates broadly to labour relations or employment-related matters in which the institution has an interest.”

Arbitrator Hayes noted that the policy was “a unilaterally imposed term and condition of employment and it is properly and squarely within an arbitrator’s jurisdiction to assess it as such.” However, he also stated that “to review the labour relations implications of the VOM policy does not disregard or discount the medical expertise. It simply recognizes that the medical expertise has a different focus  that is incomplete for the purpose of the legal question at issue.”

Written with the assistance of Andrew Nicholl, articling student.

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