An arbitrator has ruled that members of the Health Sciences Association must get flu shots or wear masks, as demanded by health employers.
In his 115-page ruling, arbitrator Robert Diebolt assessed the arguments of the Health Employers Association of B.C. and the Health Sciences Association, which represents the Health Science Professionals Bargaining Association of B.C. The hearings were conducted in July and September; the decision was awarded on October 23 in favour of the HEA, which had established a policy for influenza control requiring employees to be immunized against influenza or to wear a mask during flu season.
Each side had brought in expert witnesses: For the HSA, they included Dr. William Buchta, Dr. Thomas Jefferson, and Dr. Annalee Yassi. For the employer, the expert witnesses included Dr. Allison McGeer and Dr. Bonnie Henry. The employer also called Dr. Perry Kendall, the B.C. Medical Health Officer. Each witness's argument was summarized, including those of health care workers who had experienced adverse effects from vaccination.
Since the HSA had also objected to mandatory masking, the arbitrator discussed the issue and found the policy was reasonable, citing numerous health organizations in the US and Canada. "The central fact," he said, "is that mandatory influenza programs are not uncommon and the vaccination or masking format of the Policy is not unique. In my view, these facts are relevant to the reasonableness of the Policy. ... In conclusion, weighing 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." He ended his statement by writing:
"In conclusion, therefore, I am unable to conclude that the masking element of the policy constitutes a violation of s. 7 of the Charter. Accordingly, it is not necessary to proceed to s. 1.
"In conclusion, given the conclusions and rulings through this Award, it follows that the Policy is a valid exercise of the Employer's management rights. Accordingly, the grievance must be dismissed."
The HSA has posted a news release on its website, stating in part:
"We are of course disappointed in the arbitrator's ruling," said Val Avery, President of Health Sciences Association, the union that challenged the policy on behalf of 16,000 health science professionals.
"Our members believed they had a right to make personal health care decisions, but this policy says that's not the case. Flu shots are now mandatory for all health care workers, and if they fail to disclose whether they have been immunized, they must wear a mask at all times throughout flu season," Avery said.
... "We will be telling our members to comply with the new policy, or risk being fired," she said.
Crawford Kilian is a contributing editor of The Tyee.