The test case involved Sault Area Hospital
("SAH") in Sault Ste. Marie. The
hospital introduced a "Vaccinate or Mask"
("VOM") policy that required healthcare
workers to wear surgical/procedure masks throughout the flu season
if they did not receive the vaccination for influenza. The
grievance alleged that the policy was an unreasonable exercise of
management rights and a breach of employee privacy rights. After
finding that the VOM policy was instituted to increase vaccination
rates and that there is insufficient evidence to support its
introduction, Arbitrator Jim Hayes held that the policy failed to
"comply with the KVP principles and so [constituted]
an unreasonable exercise of management rights."
In light of his conclusion that the policy was an unreasonable
exercise of management rights, Arbitrator Hayes found it
unnecessary to address the privacy argument. However, in
obiter, he accepted the argument from the Ontario Hospital
Association and SAH that "the information at issue would have
been excluded from protection under the Personal Health
Information and Privacy Act" because it was collected and
"maintained for a purpose other than the provision of health
care to those employees." He similarly found that the
information was excluded from protection under the Freedom of
Information and Protection of Privacy Act because the
information "relates broadly to labour relations or
employment-related matters in which the institution has an
Arbitrator Hayes noted that the policy was "a unilaterally
imposed term and condition of employment and it is properly and
squarely within an arbitrator's jurisdiction to assess it as
such." However, he also stated that "to review the labour
relations implications of the VOM policy does not disregard or
discount the medical expertise. It simply recognizes that the
medical expertise has a different focus that is incomplete
for the purpose of the legal question at issue."
Written with the assistance of Andrew Nicholl, articling
Norton Rose Fulbright Canada LLP
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