Arbitrator rules unvaccinated health care workers don’t have to wear masks

The hospital was worried about low vaccination rates among health care workers and wanted those who chose not to get immunized to wear masks.
The hospital was worried about low vaccination rates among health care workers and wanted those who chose not to get immunized to wear masks. (Photo: iStock)

In a ruling that may raise a few eyebrows, an arbitrator ruled that the Sault Area Hospital in Sault Ste. Marie, Ont. could not enforce a policy that forced unvaccinated health care workers to wear masks during flu season.

The policy came into effect in 2013, because the hospital wanted to ensure that if the workers chose not to vaccinate, they’d be masked at the very least to prevent risk of transmission to patients.

The hospital was worried about the low vaccination rates of health care workers and wanted those who chose not to get immunized against the flu to wear masks during the five to six months of flu season.

The Ontario Nurses’ Association, which represents registered nurses and other health professionals, argued that the policy breached employee privacy rights. According to one case used in this ruling “There must be compelling circumstances to justify an intrusion upon an employee’s privacy.” If less invasive rules could have been used instead of the invasive policy, then the policy is not justified.

One of the issues at hand was that the ONA claimed that the hospital was trying to force health care workers to be immunized. One nurse even claimed that she felt bullied into getting a vaccination.

Another was that not everyone was asked to wear masks during flu season, only healthcare workers, which was unreasonable because other hospital workers could also spread influenza.

The arbitrator didn’t believe the mask requirement was necessary. Though he admitted “labour arbitrators are not medical experts,” he also said that “I also find that the weight of scientific evidence said to support the VOM Policy on patient safety grounds is insufficient to warrant the imposition of a mask-wearing requirement for up to six months every year.”

In fact, the arbitrator thought that this policy was introduced to force the workers to get vaccinated, which he said “undermines the collective agreement.”

In the end, it was concluded that in this case scientific evidence had to be weighed against privacy issues, human rights and labour law.

The question must be raised though that if a patient with a compromised immune system is exposed to an unmasked worker who has the flu and is not masked would the patient not be affected?

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