Arbitrator holds Vaccinate or Mask Policy to be unreasonable

Sault Area Hospital and Ontario Hospital Assn. (Vaccinate or Mask), Re
124 C.L.A.S. 224
Ontario Arbitration

ARBITRATIONS — Grievance procedure — Group grievance

Employer introduced vaccinate or mask (“VOM”) policy requiring healthcare workers (“HCW”) to wear surgical/procedure masks throughout flu season if they had received influenza vaccination — Union grieved VOM policy was unreasonable exercise of management rights and breached employee privacy rights — Union submitted masks were of negligible use in combating influenza transmission; VOM policy rested upon objectively flawed evidence; unilaterally adopted VOM policy was illogical and unreasonable; employer’s true motive was to drive up vaccination rates; VOM policy violated employee privacy rights; adoption and implementation of VOM policy constituted unreasonable exercise of management rights; VOM policy was not applicable in all areas of hospital or to visitors; and existing infection prevention and control policies were adequate — Employer submitted VOM policy was valid and reasonable patient safety measure supported by highly credible experts; purpose of VOM policy was to prevent transmission from unvaccinated HCWs to patients; VOM policy was valid exercise of management rights; and VOM policy appropriately balanced employer’s interest with employee privacy interests — Employer pursued VOM policy despite concerns raised by senior medical staff — Employer failed to consult infectious prevention and control experts — Employer announced VOM policy would be implemented should immunization rate of 70% not be achieved, which was not supported by any medical rationale — VOM Policy was introduced for purpose of driving up immunization rates — VOM policy breached collective agreement, was unreasonable and undermined rights of employees to refuse vaccination — Grievance allowed