An arbitrator has ruled that a Sault Ste. Marie, Ont. hospital cannot force nurses to wear influenza masks if they elect not to get a vaccination shot during flu season, as specified in the Vaccinate-or-Mask (VOM) policy.

Arbitration hearings between the Ontario Nurses’ Association (ONA), which objected to VOM, and the Ontario Hospital Association, through which the Sault Area Hospital (SAH) had been implementing the controversial policy, took place from Oct. 1 to July 8, according to the final court decision. Arbitrator James Hayes delivered his final verdict in ONA’s favour on Sept. 8, calling the VOM policy a “coercive” tool.

“Nothing in this award is intended to dissuade anyone from the benefit of annual influenza immunization, whatever may be the vaccination efficacy rate in any particular year,” Hayes wrote in the decision. “Where their working lives are directly affected, the interests of employees require consideration, and typically, their unions have recourse to rights arbitration to test judgements that have been made.

“On the evidence before me, I find the VOM provisions of the SAH Policy to be unreasonable,” added Hayes.

Hayes reached his decision based on evidence from six medical experts during the hearings, concluding that face masks were not an effective way to keep employees or patients safe.

“These coercive employer policies do not truly advance patient safety,” ONA president and registered nurse Linda Haslam-Stroud said in a media statement on Sept. 10. “Our collective agreement protects our patients if the medical officer of health determines that there is an influenza outbreak, by ensuring that comprehensive measures are put in place to reduce the risk of transmission to patients.

“The Vaccinate or Mask policies have been highly criticized as [a] symbolic rather than scientifically based tool in the fight against influenza,” said Haslam-Stroud.

The SAH implemented VOM on Jan. 1, 2014, and ONA members countered with a group grievance suit 13 days later. The policy states that all SAH employees “must receive annual influenza immunization or wear a surgical/procedure mask during the influenza season (typically from November to April) when in a patient care/clinical area or when engaged in work-­related patient interactions in any area of the hospital.”

“I find that the policy was introduced at SAH for the purpose of driving up vaccination rates,” wrote Hayes. “The policy operates to coerce influenza immunization and thereby undermines the collective-agreement right of employees to refuse vaccination.”

Hayes’ full decision is available from the ONA website at http://www.ona.org/documents/File/onanews/OHA,_SaultAreaHospitalalONAAward_20150908.pdf.