'Vaccinate or mask' ruling prompts London hospitals to review policies

London hospitals say they will review their policies that require front-line care workers to either get a flu shot or wear a protective mask during flu season in light of a labour arbitrator's decision that says such policies are not proven to make patients safer.

Ruling says care workers who haven't had a flu shot can't be forced to wear masks during flu season

A labour arbitrator has ruled that a handful of Toronto-area hospitals can’t force unvaccinated nurses to wear masks. London hospitals are reviewing their policies in light of the ruling. (iStock)

London hospitals say they will review their policies that require front-line care workers to either get a flu shot or wear a protective mask during flu season in light of a labour arbitrator's decision that says such policies are not proven to make patients safer. 

In statements to CBC News, both London Health Sciences Centre and St. Joseph's Hospital say they will be "carefully reviewing the arbitrator's decision to determine if our current policy needs to be revised for the coming flu season."

In a decision released Sept. 6, labour arbitrator William Kaplan weighed in on a dispute about the policy between the Ontario Nurses' Association (ONA) and the Ontario Hospital Association (OHA). The arbitrator's decision is binding against St. Michael's Hospital and eight other Toronto-area hospitals with similar policies.

The ONA had filed a grievance arguing that so-called "vaccinate or mask" policies contravened the union's collective agreement and are based on evidence that fails to show masking reduces the transmission of influenza, a potentially deadly infection. 

The ONA argued that wearing a mask is uncomfortable for workers and can compromise care, because it causes patients to worry that healthy caregivers are infectious. 

Kaplan upheld the union's grievance, saying there "there is no persuasive evidence establishing a conclusive relationship between the use of surgical and procedural masks and protection against influenza transmission." He wrote the masks' effectiveness is particularly limited in cases where the person shows no symptoms. 

Problems with masks

Kaplan also pointed to evidence that shows the masks often fit poorly. Also, he said it didn't make sense to force unvaccinated staff to wear masks when unvaccinated visitors aren't required to wear them. In a policy posted on their website, LHSC asks all non-vaccinated visitors, patients attending clinics and in-patients leaving their room to wear a mask, but they don't ask for proof of vaccination.

In a statement to CBC News, the Ontario Hospital Association (OHA) says they're disappointed by the arbitrator's decision against a policy they say protects vulnerable patients, including seniors, children and those too sick to be immunized. 

"Hospital leaders enacted this policy in good faith to protect these populations from what could be a potentially fatal illness," the statement says. 

The (OHA) statement also points to British Columbia, where similar policies were upheld by an arbitrator appointed by the Labour Relations Board, who ruled it was reasonable given the threat posed by influenza and the policy's ability to boost immunization rates. 

This isn't the first time an Ontario arbitrator has ruled against vaccinate-or-mask policies. 

In a 2015 decision, arbitrator James K.A. Hayes upheld a grievance against similar policies in a test case focused on the Sault Area Hospital. In that decision, Hayes found the policy was a roundabout way to coerce staff to get flu shots.

Like Kaplan, Hayes concluded there was little scientific evidence supporting the vaccinate-or-mask policy. That ruling prompted Sault Area Hospital to end its vaccinate-or-mask policy, but other hospitals continued with theirs, prompting the need for a second ruling.  

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