by Written on behalf of Wise Health Law October 04, 2018 3 min read

An admirable goal of any hospital is to do its best to control the spread of disease. One common ailment is the flu, or influenza. It is clearly contagious and can spread through closed communities such as hospitals. Several hospitals have implemented vaccinate or mask policies (VOM) in an effort to stem the spread of the infection. The VOM requires nurses and other health care workers to either be vaccinated against the flu or wear an unfitted surgical mask at all times during their shift. The policies applied at all times and were not confined to times of an influenza outbreak in the community or hospital. VOM policies exist in about ten (10) percent of Ontario hospitals. Their use is supported by the Ontario Hospital Association (OHA).

Nurses were opposed

The VOM policies, where they existed, were opposed by the Ontario Nurses Association (ONA). In the words of their legal counsel:
“I think the orthodoxy on this at the beginning was that these are policies that protect patients and so I really feel that ONA understood that the notion that a healthy unvaccinated nurse needs to wear a mask when she doesn’t have any symptoms was not a credible means to achieve what was a laudable objective.”
The issue is not confined to Ontario. VOM policies exist in hospitals in other provinces. Nurses sought to challenge the policies through the grievance and arbitration process.

2013 Challenge

A first challenge (2013) in British Columbia was unsuccessful. The grounds were that a VOM was an unreasonable exercise of management rights and a breach of an employee’s privacy rights. The arbitrator ruled that the VOM was a reasonable management policy.

2015 Challenge

An Ontario challenge was first brought in 2015 by nineteen (19) hospitals fronted by the Sault Area Hospital. The basis now propounded that a VOM was contrary to their collective agreement by reason of being unreasonable. The ONA was successful, the arbitrator finding that there was insufficient evidence before him to establish that asymptomatic health care workers play a material role in transmitting the flu or that wearing a mask reduces the risk. The decision also supported the nurses on their privacy concerns. Was the policy an attempt to coerce nurses to immunize? The decision to immunize was treated as personal medical information. As the hospitals had posted signs for the public to understand that all unvaccinated employees had to wear masks. That knowledge clearly revealed the personal choices (personal medical information) of those employees wearing masks. It amounted to a compulsory disclosure of personal medical information. The VOM was therefore unreasonable and unenforceable as thus being contrary to the Collective Agreement.

2018 Challenge

Several hospitals under the umbrella of the Toronto Academic Health Science Network continued to have VOM policies. They had been instituted during an influenza out break and before the 2015 decision was released but thereafter remained in effect. There had been a great deal of consultation before its implementation. St. Michael’s Hospital took the lead this time in resisting the ONA grievance. The hospitals were supported by the OHA. The challenge was again based on the policy being unreasonable and therefore contrary to the Collective Agreement. Once again there was a great deal of scientific and expert evidence presented by both sides including infection control experts, epidemiologists, and an expert on surgical masks. The VOM policy was again struck down as being unreasonable. The finding was that the policy did not protect patients and did not serve to prevent the spread of influenza in the hospital. The arbitrator found the policy to be:
“illogical and makes no sense” and “is the exact opposite of being reasonable.”

The Future of VOM Policies

Only two hospitals in Ontario continue to have VOM policies. They are both in London, being London Health Science Centre and St. Joseph’s Health Care London. The St. Joseph’s policy only applies during influenza outbreaks in the London community. It is expected that both hospitals will be reviewing their VOM policies given the result of the two arbitrations. The ONA certainly hopes they will be rescinded for if not a third grievance is likely. At Wise Health Law, we are passionate about helping health professionals and healthcare organizations understand and protect their legal rights. We monitor trends and developments in the health sector so that we can provide consistently forward-thinking legal advice and risk management guidance to all of our clients. Our lawyers have significant trial and appellate experience and will skillfully represent clients whenever litigation is required. Contact us online, or at 416-915-4234 for a consultation.

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