A British Columbia health-care union has lost its grievance against a provincial policy requiring members to get a flu shot or wear a mask during flu season – a development that may embolden other provinces to follow suit.
An arbitrator appointed by the provincial Labour Relations Board ruled the policy is reasonable, and a valid exercise of the employer's management rights.
"Health care workers do not have to immunize; they have a choice to immunize or mask during the influenza season," Robert Diebolt wrote in his decision, dated Wednesday.
"As to the mask, I am unable to characterize it as an invasive procedure. The union also characterizes a mask as stigmatizing. I am unable to agree."
The ruling upholding the B.C. policy is being closely scrutinized by lawyers for the union that brought the action, the B.C. Health Sciences Association.
In the coming days the ruling will also be studied by public health authorities across the country, some of whom are mulling over adopting similar actions in their jurisdictions.
The chairman of the Council of Chief Medical Officers of Health, Robert Strang, said his provincial and territorial counterparts have been following the B.C. policy roll out closely.
"I think today's events ... create the possibility of other jurisdictions – whether it's provinces or individual health authorities – now feeling they can move ahead in this area," Dr. Strang said from Halifax, where he is Nova Scotia's Chief Medical Officer of Health.
"Evidence is very clear that with a more persuasive education approach maybe 60 per cent (acceptance) seems to be the kind of ceiling that you hit ... Health care workers are going to need to accept stronger measures, knowing that simply education, leaving it just to that, is not getting us nearly to levels of immunization that are adequate."
The president of the 16,000-member strong B.C. Health Sciences Association said that for the time being, the union will recommend members obey the rule.
"Do one of the two: Either get immunized or put the mask on. And if there's any other follow-up process we'll see where it takes us. But comply with the policy and don't put your occupation at risk," Val Avery said in an interview.
She said the union will consult with its lawyers and with its membership and a decision will be made in the coming days about whether to continue to pursue the union's objection to the policy.
"My understanding is that there are two opportunities for follow up in terms of going back to the Labour Relations Board and asking for reconsideration or going to the B.C. Court of Appeals," said Ms. Avery, who acknowledged the union is disappointed with the ruling.
The policy, which came into effect last fall, states that health care workers who don't get a flu shot must wear a surgical mask while doing duties that bring them into contact with patients for the duration of flu season, which could run from late November until late March.
The policy includes provisions for progressively escalating disciplinary actions – up to and including dismissal – for employees who refuse to comply with its requirements. The province did not apply the teeth of the policy last year, while it was waiting for the grievance to be heard and ruled on.
The arbitrator's decision was applauded by Dr. Perry Kendall, the province's health officer.
"I think that this is good news because I think it's actually a win for patients and residents of long-term care facilities," Dr. Kendall said in an interview.
He said he did not anticipate much active resistance to the policy in health-care settings, noting last year between 68 and 72 per cent of B.C. health care workers were vaccinated against influenza.
The union had raised concerns about the requirement for unvaccinated staff to wear masks, suggesting it would impinge on the privacy of workers because it would be interpreted as a visible declaration that they had forgone flu shots.
As well, the union raised concerns that some workers covered by the policy might not be able to do their jobs while wearing a mask – speech therapists, for instance. And others – staff on psychiatric wards working with patients – might find their safety jeopardized if they wore a mask.
Dr. Kendall said employers are required to make accommodations in special circumstances and that would likely be done on a case-by-case basis. But Ms. Avery said with the provincial flu shot program starting and flu season perhaps only weeks away, it's unclear how this will work.
In his ruling, Mr. Diebolt noted that there is a duty under law to accommodate and he accepted the evidence produced by lawyers for the employers that this would happen. He suggested individual grievances could be filed if justified requests for accommodation are not granted.
He also noted that British Columbia is not alone in instituting a flu shot policy for health-care workers.
Many U.S. institutions have already put in place such requirements. And last year Horizon Health Network in New Brunswick, which oversees the operations of all English-language hospitals in the province, instituted a policy requiring staff to have a flu shot or wear a mask any time they are within two metres of patients during flu season.