With the cold weather setting in, flu season is officially in full swing.

Last year, Arbitrator Jim Hayes considered whether hospitals could implement policies requiring nurses to either get the flu shot or wear a mask. In the test case decision of Sault Area Hospital and Ontario Nurses’ Association (“Sault Area Hospital”), Arbitrator Hayes found that the controversial ‘vaccination or mask’ policy (“VOM Policy”) that required nurses to wear surgical/procedural masks throughout the flu season if they have not received vaccination for influenza, was an unreasonable exercise of management rights:

Absent adequate support for the freestanding patient safety purpose alleged, I conclude that the Policy operates to coerce influenza immunization and, thereby, undermines the collective agreement right of employees to refuse vaccination.  On all the evidence, and for the reasons canvassed at length in this Award, I conclude that the VOM Policy is unreasonable (para 13).

Since the release of this decision, the Ontario Hospital Association and the Ontario Nurses’ Association (“ONA”) have reached agreements regarding appropriate influenza vaccination policies with almost all hospitals bound to the 2014-2016 Collective Agreement. Earlier this month, Arbitrator Hayes ruled on the two remaining issues in dispute between William Osler Health System (the “Hospital”) and the ONA.  

The first issue concerned whether the Hospital could include a recommendation in the policy that unvaccinated staff wear a procedural mask during the annual influenza season. The Hospital emphasized that it would be a recommendation with no requirement or coercion to do so. The ONA submitted that the Hospital’s ongoing recommendation maintained a normative expectation for staff to ‘vaccinate or mask’. Arbitrator Hayes held that there was no reasonable basis for the recommendation and it should be removed from this policy, noting his finding in Sault Area Hospital that there is little scientific evidence showing the use of masks reduces transmission of the virus to patients.

The second issue concerned the language in the policy regarding the requirements that staff be relocated and wear a mask following exposure to an outbreak.  Arbitrator Hayes found that a combination of both the Hospital’s and ONA’s proposed language was appropriate. Regarding when a staff member would be required to wear the mask, he accepted the ONA’s proposal of “while providing direct patient care and/or while in areas of patient care units normally accessible to patients”. Regarding how long a staff member would be required to wear the mask, Arbitrator Hayes rejected the ONA’s submission of a fixed 72-hour period, and accepted the Hospital’s proposal of an assessment approach.

Written with the assistance of Nicole Buchanan, articling student.

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