On September 6, 2018, Arbitrator Kaplan upheld ONA's grievance that the introduction of a "Vaccinate or Mask" Policy constituted an unreasonable exercise of the Hospitals' management rights, and found that the policy had "scant" scientific underpinnings. This is consistent with ONA's related win in 2015 before Arbitrator Hayes. Numerous hospitals in the Toronto area refused to abide by Arbitrator Hayes's decision, and ONA renewed its challenge to the policy in St. Michael's Hospital v Ontario Nurses' Association, 2018 CanLII 82519.
ONA successfully argued that the 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 called the following experts: Dr. De Serres (epidemiologist), Dr. Brosseau (masking expert), and Dr. Gardam (infection control expert). Each of these experts testified before Arbitrator Kaplan that the scientific support for a "Vaccinate or Mask" Policy remained scant and unchanged, and supported ONA's position that the policy was unreasonable.
In Arbitrator Kaplan's view, there was insufficient evidence to warrant the policy, insufficient evidence that asymptomatic or presymptomatic transmission is a significant source of infection, and insufficient evidence that masking prevents the spread of influenza. Accordingly, he determined that "the 'ask' that [health care workers] wear a mask for their entire shift for possibly months on end when entirely free of symptoms is completely unreasonable and is contrary to the collective agreement".
Though Arbitrator Kaplan accepted that the policy was implemented in pursuit of reasonable objectives, he nonetheless concluded that acting in good faith is not sufficient to establish that a unilateral employer policy, without evidence to support it, is reasonable.
Arbitrator Kaplan's award affirms that a policy which is unilaterally enacted by a hospital without sufficient scientific support is likely an unreasonable exercise of management rights. The decision also further supports ONA members' right to refuse vaccination.