ONA Wins Second Decision on “Unreasonable and Illogical” Vaccinate or Mask Influenza Policies

September 7, 2018

TORONTO – The Ontario Nurses’ Association (ONA) has won a second decision on the controversial vaccinate or mask (VOM) policy, striking down the policy in effect at St. Michael’s Hospital and several other hospitals in the Toronto area that form the Toronto Academic Health Science Network (TAHSN). These policies force nurses and other health-care workers to wear an unfitted surgical mask for the entirety of their shift if they choose not to receive the influenza vaccine.

After reviewing extensive expert evidence submitted by both ONA and St. Michael’s Hospital, which was the lead case for the TAHSN group, Arbitrator William Kaplan, in his September 6 decision, found that St. Michael’s VOM policy is “illogical and makes no sense” and “is the exact opposite of being reasonable.” In reaching this conclusion, Arbitrator Kaplan rejected the hospital’s evidence. A copy of the full decision is available here.

The TAHSN group also includes Sinai Health System, Sunnybrook Health Sciences Centre, North York General Hospital, the Centre for Addiction and Mental Health, Michael Garron Hospital and Baycrest Health Sciences.

This is the second such win for ONA. In 2015, Arbitrator James Hayes struck down the same type of policy in an arbitration that included other Ontario hospitals across the province, with Sault Area Hospital as the lead case. Hayes found there was “scant evidence” that forcing nurses to use masks reduced the transmission of influenza to patients. Despite this clear ruling, the majority of TAHSN hospitals refused to follow the Hayes award and maintained their respective VOM policies. As a result, ONA was forced to litigate this matter again at St. Michael’s Hospital.

“The priority of nurses across Ontario is first and foremost the safety of our patients, but these hospital policies do not protect patients,” said ONA President Vicki McKenna, RN. “ONA has already successfully argued against VOM policies, proving they are fundamentally flawed, and we are deeply disappointed that taxpayers’ money has been wasted on having to do so all over again. Our collective agreement already protects our patients if the Medical Officer of Health determines there is an influenza outbreak by ensuring that comprehensive measures are put in place to reduce the risk of transmission to patients.”

ONA’s well-regarded expert witnesses, including Toronto infection control expert Dr. Michael Gardam, Quebec epidemiologist Dr. Gaston De Serres, and Dr. Lisa Brosseau, an American expert on masks, testified that there was insufficient evidence to support the St. Michael’s policy and no evidence that forcing healthy nurses to wear masks during the influenza season did anything to prevent transmission of influenza in hospitals. They further testified that nurses who have no symptoms are unlikely to be a real source of transmission and that it was not logical to force healthy unvaccinated nurses to mask. Arbitrator Kaplan accepted this expert evidence. In contrast, he noted the only fair words to describe the hospital’s evidence in support of masking are “insufficient, inadequate and completely unpersuasive.”

He also agreed with ONA that there was little evidence of any positive impact on patient care outcomes as a result of the VOM policy. Both prior to and after introducing the policy, hospitals continued to experience outbreaks of influenza. He concluded the evidence supported that masks “do not prevent the transmission of the influenza virus.”

“VOM policies have been highly criticized as being a symbolic rather than a scientifically-based tool in the fight against influenza,” added McKenna. “ONA has long advocated for the development of a province-wide, comprehensive influenza plan that relies on credible evidence to protect patients. We are hopeful that with this second decision, we can finally put this issue to rest and focus on what matters to Ontarians: the betterment of patient care.”

ONA is the union representing more than 65,000 registered nurses and allied health professionals, as well as more than 18,000 nursing student affiliates, providing care in hospitals, long-term care facilities, public health, the community, clinics and industry.

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For more information: Ontario Nurses’ Association

Ruth Featherstone ruthf@ona.org; 416-964-1979 ext. 2267;

Ken Marciniec kenm@ona.org; 416-964-1979 ext. 2306; cell: 416-803-6066.