Sault Area Hospital (the “Hospital”), like approximately 30 other hospitals in Ontario, required health-care workers to wear surgical/procedure masks each year throughout the five to six month flu season if they were not vaccinated for influenza (“Vaccinate or Mask Policy” or “VOM policy”). The VOM policy required masking of healthcare workers even if they were asymptomatic and regardless of whether there was an influenza outbreak.
Vaccination was optional under the Hospital’s collective agreement. The Hospital unilaterally implemented the mandatory VOM policy for employees who chose to exercise their right under the collective agreement not to get vaccinated.
The Ontario Nurses Association (“ONA”) challenged the VOM policy on the basis that it coerced employees into being vaccinated by “outing” them with mandatory masks if they chose not to be vaccinated.
The Hospital’s position was the VOM policy was necessary for patient safety as it reduced the transmission of influenza virus to patients.
The arbitrator held that wearing masks for five or six months at a time was extremely unpleasant. Employees also felt that they were being put on display for having refused to get vaccinated. After hearing extensive evidence from numerous experts, the arbitrator held there was “scant” evidence the use of masks reduced the transmission of influenza virus to patients or protected health-care workers.
The VOM policy was struck down as an unreasonable exercise of employer’s rights under the collective agreement.
Bottom line for health-care employers:
- Unionized employers should revise their influenza policies to ensure compliance with this latest decision. Here is a link to the full decision.
- Non-unionized employers are not directly affected as this decision does not specifically apply to non-unionized workplaces. However, these employers should revise and reconsider such policies considering hospital policies are often used as benchmarks for other health-care workplaces.