Legal Notes
“Vaccinate or Mask” Policy struck down In a recent decision, Arbitrator Kaplan struck down the “Vaccinate or Mask” (“VOM”) policy introduced at hospitals; he found that this policy was both unreasonable and that it violated the collective agreement. Implemented by employers in the health care sector, VOM policies typically require health care workers to either get the annual influenza (flu) vaccine, or accept wearing a surgical or procedural mask during flu season.
Facts In this case, the employer, St. Michael’s Hospital introduced and implemented a VOM policy at the hospital. Under this VOM policy, healthcare workers (including nurses) who did not get the annual influenza vaccine, were required, during all or most of the flu season, to wear a surgical or procedural mask in all areas where patients were present or where care was delivered.
sion—this was not enough to justify the policy. Arbitrator Kaplan wrote:
“Acting in good faith is not enough alone to establish that a unilateral employer policy is reasonable where, as here, it is inconsistent with the collective agreement and where it sits on a shaky evidentiary foundation.”
Implementing this VOM policy meant that health care workers at St. Michael’s Hospital could be forced to wear a mask for their entire shift for possibly months on end while being entirely free of symptoms. The nurses’ union grieved the VOM policy immediately.
Arbitrator Kaplan also found that the VOM policy breached the collective agreement. This VOM policy was found to be interfering with and undermining the nurses’ categorical right to refuse any unwanted vaccinations—a right under their collective agreement.
Decision
Takeaway
Arbitrator Kaplan noted that there was no persuasive scientific evidence establishing a conclusive relationship between the use of surgical and procedural masks and protection against influenza transmission. Also, no studies have definitively shown that mask use by either infectious patients or health care workers prevents influenza transmission. Arbitrator Kaplan found that the requirement for masking was a significant “ask” for these workers, and since the benefit it provided was so limited, it was not justified. The fact that there was no evidence that proved that these masks were effective to prevent transmission of the flu and because the VOM policy was a significant burden on these workers, the Arbitrator found the policy to be unreasonable. While the Hospital implemented the VOM policy in good faith, to promote patients’ health—a hospital’s mis-
The impact of this grievance award is that VOM policies and their implementation at Ontario hospitals (and potentially elsewhere) are now severely undermined. The effectiveness of masking to protect patients from influenza is not supported by sufficient scientific evidence. Despite their minimal benefit to preventing against influenza transmission, employers may still impose this rule on these workers. However, this decision shows, that when employers unilaterally impose these policies, lacking evidence of a benefit, such policies can be challenged for being unreasonable as well as violating the collective agreement. This decision could impact other healthcare workers in other healthcare settings, such as Long-Term Care or Retirement Homes, as well as workers in other sectors where employers may implement VOM policies.
