Northern Exposure

Mandatory flu vaccination/masking policy upheld

By Charles G. Harrison

A recent labor arbitration in British Columbia upheld the employers’ policy requiring annual flu vaccinations or masking for their healthcare staff. Coming as it does during flu season, this is a timely decision.

The issue was put before Arbitrator Robert Diebolt in Health Employers Assn. of British Columbia and HSA BC (Influenza Control Program Policy), October 23, 2013. It required 14 days of hearings, with over 17 witnesses including five expert witnesses testifying.

The employers were six regional public health authorities. They provide care in both acute-care hospitals and long-term-care facilities. For a number of years they had sought to encourage voluntary annual flu vaccinations through a variety of initiatives. But they had experienced unsatisfactory levels of enrollment.

Parties’ positions

Convinced of the public health benefits of vaccination for healthcare workers, and after studying successful mandatory programs elsewhere, the employers unilaterally introduced a mandatory vaccination/masking policy in 2012. The policy required that healthcare workers either receive an annual vaccination or, at the employee’s election, wear a surgical mask while in patient-contact areas during flu season. Studies showed that where a masking option was given, vaccination levels approached the same levels as were achieved where vaccination was mandatory.

The mandatory vaccination/masking policy was challenged by a union representing healthcare workers. The union argued that the policy was not reasonably necessary for public health. Therefore it was an unreasonable exercise of management’s rights under the union’s collective agreement, it said.

The union also argued that the policy violated its members’ privacy rights, the British Columbia human rights law, and certain provisions of the Canadian Charter of Rights and Freedoms, which is part of Canada’s Constitution.

Arbitrator’s ruling

The arbitrator concluded that there was no clause in the union contract that directly applied. The policy need only be “reasonable” to be justified as a matter of management’s implied rights. The union had argued that the employer needed to show that the policy was “reasonably necessary” to achieve a legitimate management purpose. This higher standard had been adopted in cases involving policies requiring employees to undergo involuntary medical procedures. However, those did not apply here because employees had the option of simply wearing a surgical mask rather than being vaccinated. Taking that into account, and the fact that the employers had first unsuccessfully attempted voluntary programs, the arbitrator concluded that the policy was reasonable.

Turning to the privacy issue, the arbitrator noted a recent case from the Supreme Court of Canada dealing with the balancing of interests required in relation to an employer’s drug and alcohol testing policy. Here the arbitrator was satisfied that there was a significant public health risk being addressed by the policy. That risk had to be balanced against the individual privacy interests of the employees.

The measures required of employees—having the option of masking rather than receiving a vaccination—were less intrusive than the “highly invasive” measures required under the drug and alcohol testing policy that had been dealt with by the Supreme Court of Canada. On balance, the public health interest carried the day.

The mask option also effectively neutralized the union’s human rights argument (that the policy discriminated against employees with disabilities relating to vaccination). The arbitrator also rejected the union argument that requiring those non-vaccinated employees to wear a mask was a form of improper “retaliation” against them. It served a legitimate public health purpose and could not reasonably be perceived to be stigmatizing.

While the arbitrator considered it possible that circumstances might arise where additional accommodations might be required, the policy’s silence on such measures was not fatal: The duty to accommodate is a freestanding obligation whether or not addressed in the policy. Any issues of individual accommodation could be addressed on a case-by-case basis as they arose.

Much the same logic was applied to dismiss the union’s arguments under the Charter of Rights and Freedoms.

At the time of writing (November 21, 2013), the union has not yet applied for court review of the decision, but it has taken the steps necessary to preserve that option.

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