On September 8, 2015, Arbitrator James Hayes released his
decision in Sault Area Hospital v. Ontario Nurses'
Association ("ONA"), striking down the
Hospital's "Vaccinate or Mask" (the "VOM
The VOM Policy, which was not unique to the Hospital in
question, required healthcare workers to wear surgical/procedure
masks each year throughout the flu season if they had not received
a vaccination for influenza that year. The ONA grieved the VOM
Policy was an unreasonable exercise of management rights and a
breach of employee privacy rights.
The Arbitrator examined the competing medical evidence and
concluded that the VOM Policy was introduced at the Hospital for
the purpose of driving up vaccination rates. Masks were cast as a
consequence for failing to vaccinate. He also found that the weight
of scientific evidence said to support the VOM Policy on patient
safety grounds was insufficient to warrant the imposition of a
mask-wearing requirement for up to six months every year.
The Arbitrator noted that there was limited data on the use of
masks and respirators to reduce the transmission of influenza. In
his view, none of the studies established a conclusive relationship
between mask/respirator use and protection against influenza
infection. He characterized the evidence in support of the VOM
Policy as "scant".
Absent adequate support for the freestanding patient safety
purpose alleged by the Hospital, the Arbitrator concluded that the
VOM Policy was an unreasonable exercise of management rights, that
it operated to coerce influenza immunization, and thus, that it
undermined the collective agreement right of employees to refuse
vaccination. Given his conclusion, he did not decide whether the
VOM Policy was also a breach of nurses' privacy rights, but
stated, in obiter, that vaccination information about an
employee that is collected and maintained for the purpose of
implementing a work related policy (and not for purpose of
providing health care to the employee) is excluded from the
application of relevant privacy legislation.
The Arbitrator stressed that the case was not about the merits
of influenza vaccination and that it was not intended to dissuade
anyone from the benefit of annual influenza immunization.
In reaching his decision, the Arbitrator expressly declined to
follow a 2013 British Columbia decision that had found a similar
policy to be a reasonable exercise of management rights. The result
is that there are now competing decisions on whether hospitals may
implement VOM policies. Further cases may yet wrestle with this
A recent decision from the Supreme Court of British Columbia, Ly v. British Columbia (Interior Health Authority) 2017 BCSC 42, provides helpful clarification of the law on termination of probationary employees on the basis of "suitability" and sends a cautionary note about the importance of fair and objective assessments during probationary periods.
The Ontario Court of Appeal recently gave employees and employers a valuable reminder: a breach of an employment contract does not, in and of itself, constitute a constructive dismissal. Even if the breach translates into hundreds of thousands of dollars not being paid.
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