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Dec 12, 2018
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In ONA v St. Michael’s Hospital, Arbitrator Kaplan upheld a grievance filed by the Ontario Nurses’ Association (“ONA”) alleging that the introduction of a ‘Vaccinate or Mask’ ("VOM") policy at several Toronto-area hospitals constituted an unreasonable exercise of the Hospitals' management rights. Arbitrator Kaplan agreed with ONA that there was ‘scant’ scientific evidence to support the VOM policies in issue, and consequently struck them down.

This is the second time ONA has successfully challenged VOM policies in place at Ontario hospitals.  

The Facts

VOM policies typically require staff to either receive the annual influenza vaccination or submit to wearing a surgical or procedural mask for the majority of the influenza season, regardless of whether any influenza-related symptoms are present.

In 2015, ONA was successful in having one such policy struck down at the Sault Area Hospital (Sault Area Hospital v ONA, 2015 CanLII 55643). The majority of hospitals in the Toronto Area Health Science Network (“TAHSN”) refused to follow the Sault Area Hospital award, however, and maintained their respective VOM policies.

ONA and the Ontario Hospital Association (“OHA”) agreed to litigate this issue a second time for these specific TAHSN Hospitals pursuant to a Memorandum of Agreement. St. Michael’s Hospital was chosen by the OHA as the representative Hospital for this grievance.

The Decision

Consistent with its position in Sault Area Hospital, ONA argued that the VOM policy undermined the negotiated rights of employees to choose whether or not to be vaccinated, and was a coercive policy designed to increase vaccination rates. ONA also argued that there was no scientific evidence to support the Hospital's position that a VOM policy was effective at preventing or decreasing the rate of transmission for seasonal influenza.

Arbitrator Kaplan agreed that there was "scant" evidence to support the policy's introduction. He made the following findings in this regard:

  1. There was insufficient evidence of a ‘problem’ to support the imposition of the VOM policy;
  2. There was insufficient evidence to establish a link between vaccination and the prevention of nosocomial (hospital-acquired) influenza;
  3. There was insufficient evidence that asymptomatic or presymptomatic transmission was a significant source of infection; and
  4. There was insufficient evidence that masking prevents the spread of influenza.

Accordingly, “the ‘ask’ that [health care workers] wear a mask for their entire shift for possibly months on end when entirely free of symptoms [was deemed] completely unreasonable and contrary to the collective agreement”.

Though the Hospital suggested it had imposed the VOM policy in good faith, Arbitrator Kaplan concluded that acting in good faith, alone, was not sufficient 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”.

Arbitrator Kaplan expressly criticized the Hospital’s experts in arriving at this conclusion, noting that some of the Hospital's expert opinions were “particularly problematic and actually inconsistent with the most basic academic norms”. He concluded that “the only fair words to describe the evidence advanced in support of the masking component […] are insufficient, inadequate, and completely unpersuasive”.

The VOM Policy was thus struck down as an unreasonable exercise of the Hospital’s management rights. Pursuant to the Memorandum of Agreement signed between ONA and the OHA, the VOM policies in place at several other Toronto-area hospitals were struck down as well.  

The Takeaway

ONA’s success in this grievance has meant that the vast majority of existing VOM policies in effect at Ontario hospitals have been rescinded. Its impact, however, extends beyond the Hospital sector. This is because other public institutions – such as school authorities – have introduced similar policies, and will undoubtedly consider Arbitrator Kaplan's decision when evaluating the bona fides of any existing or planned measures.

Moreover, Arbitrator Kaplan’s commentary is of broad application to any unilateral exercise of management rights. The decision affirms that a policy unilaterally introduced by an employer, without sufficient scientific evidence to warrant its introduction, may be struck down as an unreasonable exercise of management rights. 

Cavalluzzo commends ONA on leading the charge against the introduction of these scientifically unsound policies, and for insisting on evidence-based, accepted practices.

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