Flu shots mandatory for B.C. health-care workers

Voluntary, education-based approach preferred: Union
By Amanda Silliker
|Canadian HR Reporter|Last Updated: 09/25/2012

Beginning this flu season, British Columbia will be the first province in the country to implement a mandatory flu shot policy for health-care workers.

“Influenza causes more deaths annually than all other vaccine-preventable diseases combined, and hospitalized patients are more vulnerable,” said B.C.’s Provincial Health Officer Perry Kendall, who announced the new policy in August.

“Putting in place consistent policies to prevent influenza from spreading is the right thing to do from a patient safety perspective.”

About 50 per cent of health-care workers in B.C. currently receive the vaccine, which is much lower than the ideal, said Kendall, who would like to see coverage levels of at least 85 per cent.

From about December to March — the typical flu season — health-care workers at publicly funded health-care facilities or in the community, including long-term care facilities, will need to receive the influenza vaccination or wear a mask throughout the season, said Kendall.

The policy applies to any worker who interacts with patients including nurses, physicians, volunteers, students, contractors and vendors. The only people unaffected by the policy would be administrative or support staff who don’t come into contact with patients, said Kendall.

If an employee refuses to have the vaccine or wear a mask, this will be treated as any other breach of the professional code through the progressive, disciplinary route, said Kendall.

A few hospitals and public health units across Canada have mandatory influenza vaccination policies in place, including North Bay General Hospital in Ontario and Vancouver Coastal Health. And in July, the City of Toronto’s board of health was encouraging hospitals to implement mandatory flu shot policies to boost the current uptake of 48 per cent.

But there is a lot of conflicting information around the influenza vaccination and “science is all over the place on this,” which is cause for concern around mandatory flu shot policies, said Debra McPherson, president of the BC Nurses’ Union in Burnaby, B.C., which represents 32,000 workers across the province.

“When it comes to vaccinations, there’s one simple question: ‘What is the likelihood that a vaccine will prevent this infection versus what are the chances of a serious, adverse reaction to the vaccine?’ That should be a simple question — try getting a simple answer,” said Micheal Vonn, policy director at the British Columbia Civil Liberties Association in Vancouver.

For the past decade, the province has been working with unions on a voluntary, education-based approach — but it was not getting the results it wanted, said Kendall.

However, this approach is still the preferred option — it just might need some revamping, said McPherson.

“Many of the nurses who practise today were not around at a time of the devastation of communicable diseases prior to vaccination, so they’ve not had the experience of a massive impact on health that comes from the failure to vaccinate,” she said. “A review of the impact of not doing vaccinations is something our members need to perhaps have a review of.”

Health-care employers should set up off-site workshops on this topic and engage in open dialogue with staff, said McPherson.

The best education should be unbiased and provide employees with useful tools such as a method to determine if they are likely to have a negative reaction to the vaccine, said Vonn.

Education campaigns could also focus on other infection control measures, such as proper handwashing, because the low levels of uptake may be “remedied through measures much less draconian than mandating vaccines,” said Vonn.

Employee privacy a concern

One of the major concerns with a mandatory vaccination policy is the impact on employee privacy, she said.

Under the B.C. policy, when an employee receives a flu shot, he will be given a sticker to put on his ID badge. For those who choose to wear masks, they will be given a sticker that says, “I care, I wear a mask” so they are not stigmatized, said Kendall.

But this sticker may actually be an invasion of a worker’s privacy, said McPherson.

“Your immunization status is part of your personal heath history, which you should have some right to privacy (over),” she said.

“You don’t wear a sticker on your arm that says, ‘I’m diabetic’ and this notion of having some sort of marker is ridiculous and it’s particularly demeaning.”

Human rights also an issue

Another concern around the mandatory policy is its impact on human rights.

“There’s no possibility of a government ordering a person to undertake a medical intervention where that doesn’t engage in very fundamental human rights,” said Vonn.

“It implicates the basic right to bodily integrity and it is an extremely high standard for the government to meet to justify that kind of incursion of the private decision-making of an individual.”

In 2002, the Ontario government withdrew legislation that made it mandatory for paramedics to get flu shots, after the paramedics union launched a challenge under the Charter of Rights and Freedoms.

When it comes to human rights cases, employers should be mindful they could be challenged on the basis of disability — where taking the flu shot could put someone’s health and safety at risk — or religion — where the flu shot may go against someone’s religious beliefs, said Karen Sargeant, a partner in law firm Fasken Martineau’s labour group in Toronto.

“The typical things would apply: You would have to look at whether you could accommodate the person,” she said. “Something like a mask might be a way to do that or have them work in an area where they didn’t need to have interaction with patients during flu season.”

Mandatory flu shot policies would likely only be successfully implemented in the health-care sector where the health of the public or patients is at risk, said Sargeant.

“If it’s a case where an employer simply wants to reduce its employees’ sick time, for example, and there are no other issues at risk, arbitrators or courts would be less inclined to allow them to make flu shots mandatory,” she said. “You really have to look at the purpose behind the flu shot.”

Unionized employers that are considering putting a mandatory flu shot policy in place should try to negotiate it into their collective agreement, said Sargeant. If they don’t have it in the agreement, they should provide as much notice as possible, as should non-unionized employers.

“(If employees) are going to allege this is somehow a constructive dismissal, that you’ve now changed the terms and conditions of employment, the more notice you’ve given the better,” said Sargeant.

“So, if you’re going to do it for the next flu season, give them the notice now.”

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