Hospital Employee Vaccinations

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Osler legal updateHospitals are a unique workplace for many reasons, particularly with respect to employee health and patient safety.  The question “should flu shots be mandatory for Hospital employees?” is often asked during each flu season.

In an October 2012 editorial, the Canadian Medical Association Journal estimated that approximately 50-60 percent of Canada’s health care workers get an annual flu vaccine.  Voluntary measures in place to date have resulted in a reported 22-52 per cent increase.  The editorial further stated that the participation rate should be above 90 per cent to adequately protect patients from contracting the flu.

Many Hospitals have policies, and/or provisions in collective agreements, to exclude workers who have not been vaccinated for the flu.  In some cases, the workers are placed on unpaid leave until they are vaccinated or the risk of infection to patients has decreased. In addition to efforts by individual hospitals, various provincial governments have attempted to implement policies to make the flu shot mandatory for health care workers.

In November 2012, the Canadian Nurses Association (CNA) published a position statement on its website (cna-aiic.ca) on influenza immunization of registered nurses.  CNA’s position is that influenza is a serious illness, and that immunization is the most effective method of prevention.  CNA therefore states that all registered nurses should receive an annual flu vaccine, and that this should be a condition of service in the workplace.

Notwithstanding the support from CNA and influenza experts, workers and unions have challenged the policy of excluding non-vaccinated workers from the workplace.  The reasons for opposing such policies have included:

  1. Complaints about the unpaid leave for non- vaccinated employees during an outbreak.
  2. Failure to consider alternative approaches for non-vaccinated employees such as re-assignment.
  3. Breach of section 7 of the Canadian Charter of Rights and Freedoms, which is the right to life, liberty and security of the person.
  4. Unreasonable exercise of management rights under a collective agreement

With respect to the Charter objections, unions have argued it violates Section 7 of the Charter to suspend an employee without pay for not introducing a foreign substance into his or her body. Hospital employers have typically taken the position that there is no Charter violation because a worker has the choice of whether to be vaccinated.

Many labour arbitrators across Canada have accepted the position that a policy of excluding non-vaccinated workers is reasonable.  For example, in a 2006 arbitration award from British Columbia involving a nurses’ union, the arbitrator found that the evidence established the policy was reasonable.  The policy provided for voluntary vaccination, and the option of taking anti-viral medication if an outbreak is declared.  He considered this combination to be “necessary in order to contain the spread of an influenza outbreak in a fragile population.”  More significantly, he found that the employees had a “choice in the matter”, even though there could be financial consequences for those who chose not to be immunized.

However, in a 2002 Ontario arbitration award involving the Canadian Union of Public Employees, an arbitration panel framed the issue differently.  The panel characterized the policy of excluding non-immunized workers without pay as follows:

In this case the employees have done nothing wrong and they are not ill with the flu, yet they are being prevented from working unless they undergo medical treatment…. Clearly if someone were contagious and they were sent home then the sick policy would apply and there would be no issue. The case here is unique in that perfectly well employees are not being permitted to work.

The arbitration panel in the CUPE decision concluded that the non-disciplinary unpaid suspension of non-immunized workers violated Section 7 of the Charter.  The panel considered the circumstances to amount to enforced medical treatment for which there was no consent.  In this case, we note that the employer had not bargained for a provision on unpaid suspensions for non-immunized workers during an outbreak with this particular union, but had done so with its nurses’ union.

As the two cases outlined above illustrate, arbitrators may reach opposite conclusions about non-immunized employees based on similar facts and policies.

Whether a particular Hospital policy on employee vaccinations is enforceable will depend on the reasonableness of the policy, and the language in the applicable collective agreement or individual employment contract as the case may be.