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The Facts: In 2012, the Health Employers' Association of British Columbia introduced an Influenza Control Program Policy requiring health care workers to get a flu shot or wear a mask while caring for patients during flu season, which the union grieved. The employer, representing six Health Authorities in B.C., implemented the policy in response to low vaccine coverage rates of health care workers and an inability to achieve target rates of vaccination through campaigns promoting voluntary vaccination commencing in 2000. Acting on the advice of Dr. Perry Kendall, B.C.'s Provincial Health Officer, and relying on evidence suggesting that health care worker vaccination and masking reduce transmission of influenza to patients, the employer moved towards a mandatory policy. Asserting that members had the right to make personal health care decisions, the B.C. Health Sciences Association filed a policy grievance, contending that the policy violated the collective agreement, the Human Rights Code of British Columbia, privacy legislation, and the Canadian Charter of Rights and Freedoms. Extensive expert medical evidence during the hearing indicated that immunization was beneficial for the health care workers themselves, but was divided as to whether immunization of health care workers reduced transmission to patients. The evidence was similarly divided as to the utility of masking.

Comment:

Having determined that the policy was reasonable under the KVP test, Diebolt turned to the Irving test applicable to policies that affect privacy interests, which he characterized as requiring an arbitrator to balance the employer's interest in the policy as a patient safety measure against the harm to the privacy interest of the health care workers with respect to their vaccination status. Determining that the medical privacy right at stake in the annual disclosure of one's immunization status did not rise to the level of the right considered in Irving, which involved "highly intrusive" seizures of bodily samples, Diebolt further held that the employer's interest in patient safety related to a "real and serious patient safety issue" and that "the policy [was] a helpful program to reduce patient risk." Diebolt also considered that the employer had chosen the least intrusive means to advance its interest in light of the unsuccessful voluntary programs and in providing the alternative of masking. To quote the arbitrator: "[W]eighing the employer's interest in the policy as a patient safety measure against the harm to the privacy interest of the health care workers and applying a proportionality test respecting intrusion, based on the considerations set out above I am unable to conclude that the policy is unreasonable."

Diebolt also upheld the masking component of the policy as reasonable, finding on the evidence that masking had a "patient safety purpose and effect" by inhibiting the transmission of the influenza virus, and an "accommodative purpose" for health care workers who conscientiously objected to immunization. Observing that mandatory programs have been accepted in New Brunswick and the United States, Diebolt also considered that regard should be paid to the precautionary principle in health care settings that "it can be prudent to do a thing even though there may be scientific uncertainty." Moreover, he held that the absence of a reference to accommodation did not make the policy unreasonable, noting that this duty was a free-standing legal obligation that was not required explicitly to be incorporated into the policy and that any such issue should be addressed in an individual grievance if made necessary by the policy's application. He also rejected the union's submission that the policy could potentially harm health care workers' mental and physical health, considering the evidence to fall short of "establishing a significant risk of harm, such that the policy should be considered unreasonable."

Turning first to the KVP test, specifically whether the policy was consistent with the collective agreement and was a reasonable exercise of the employer's management rights, Diebolt noted that the only possible inconsistency with the collective agreement would be with the non-discrimination clause, given his ruling regarding the scope of Article 6.01, and that he would address this issue in his reasons with respect to the Human Rights Code. Diebolt then turned to the reasonableness of the policy and found, after an extensive review of the conflicting medical evidence that: (1) the influenza virus is a serious, even fatal disease; (2) immunization reduces the probability of contracting the disease; and (3) immunization of health care workers reduces the transmission of influenza to patients. Accordingly, Diebolt reasoned that the facts militated "strongly in favour of a conclusion that an immunization program that increases the rate of health care immunization is a reasonable policy."

Diebolt instead regarded the policy as a unilaterally imposed set of rules, making it necessary to establish that they were a legitimate exercise of the employer's residual management rights under the collective agreement and met the test of reasonableness set out in Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co., [1965] O.L.A.A. No. 2 (QL) (Robinson). In addition, given that the policy contained elements that touched on privacy rights, Diebolt held that the policy must also meet the test articulated in CEP, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (CanLII) (reviewed in Lancaster's Disability & Accommodation, August 9, 2013, eAlert No. 182), in which the Supreme Court of Canada held that an employer cannot unilaterally subject employees to a policy of random alcohol testing without evidence of a general problem with alcohol abuse in the workplace, based on an approach of balancing the employer's interest in the safety of its operations against employees' privacy.

In a 115-page decision, Arbitrator Robert Diebolt denied the grievance and upheld the policy as lawful and a reasonable exercise of the employer's management rights.

The Decision:

As noted by the arbitrator, no Canadian decision has addressed a seasonal immunization policy similar to the policy in this case. However, a number of decisions have addressed, and generally upheld, outbreak policies mandating vaccination or exclusion on unpaid leave. B.C. Health Sciences Association President Val Avery expressed his disappointment in the arbitrator's ruling, stating: "Our members believed they had a right to make personal health care decisions, but this policy says that's not the case." Avery said the Association is studying the ruling and could appeal. On the other hand, Dr. Perry Kendall, B.C.'s chief medical officer of health, applauded the decision, calling it a "win for patients and residents of long-term care facilities."

In 2012, Public Health Ontario changed its guidelines to call for mandatory flu shots because not enough health care workers were getting them voluntarily. Other municipal public health units – led by Toronto Public Health – also called for mandatory shots. Ontario's chief medical officer of health, Dr. Arlene King, stated in November 2013 that, while the government wants to see a dramatic increase in the number of health care workers who get a flu shot, it is stopping short of making vaccinations compulsory, but has instead implemented a three-year strategy to "strongly encourage health care workers to be immunized every year." She acknowledged, however, that the number of health care workers getting inoculated remains at 51 percent for those employed in hospitals and 75 percent for those in long-term care homes. For further discussion of the validity of employer rules, see section 14.1 in Mitchnick & Etherington's Leading Cases on Labour Arbitration Online.