Policy a valid exercise of management rights: Arbitrator
Grievances against British Columbia’s provincial flu policy have been dismissed.
Robert Diebolt, the arbitrator appointed by the provincial labour relations board, ruled the policy is a valid exercise of the employer’s management rights.
The policy requires healthcare workers to either receive the influenza vaccination or wear a mask at all times during flu season, which typically lasts from late November through the end of March.
Grievances against the policy were launched by the Health Sciences Association of B.C. (HSA), the Hospital Employees Union and the B.C. Nurses Unions. The HSA represented all three unions during the arbitration process. The HSA represents 16,000 members at 250 hospitals and agencies throughout British Columbia.
Val Avery, president of HSA, said the union is currently encouraging its members to comply with the policy but has not yet decided its next steps.
"We haven’t made a decision," Avery said. "We’re still considering our options."
Following the arbitration ruling, unions can now request the labour Board reconsider the judgment or take their case to the appeals board of British Columbia.
While health care workers still have issues with the policy, revisions were made based on their feedback.
The policy originally required health-care workers to wear an identifying marker on their badges to indicate whether or not they had been vaccinated. The marker was found to be a breach of workers’ private health status and subsequently removed from the policy. The policy also required workers to report any employees not complying with the policy. Unions argued this would create an unhealthy work environment and the policy was subsequently changed. Reporting coworkers failing to comply with the policy is now an expectation, and not a requirement.
"We expect that health-care workers will comply with the policy," said Dr. Perry Kendall, the provincial health officer. "It’s recognized that providing influenza vaccination protects health-care workers from influenza. It means they probably have fewer sick days and means they therefore are able to care for patients during the busiest times of the year. It also provides a barrier to vulnerable residents and patients."
The first year of the policy focused on education and not enforcement. In its second year the policy will expand to include visitors to health-care facilities as well as staff. Kendall said other provinces will likely look to B.C. before implementing similar policies.
Horizon Health Network, the largest health care organization in Atlantic Canada, employed a similar flu policy in hospitals in New Brunswick in 2012. The company’s more than 13,000 employees must wear a mask within six feet of a patient during flu season if they have not been immunized. Unlike B.C., Horizon’s policy saw very little resistance from health-care workers or their representatives.
"We spent a lot of time up front doing education with our unions on why we were implementing the whole policy," said Marilyn Babineau, manager of workforce wellness at Horizon. "We’re not saying that getting the flu vaccination is mandatory, but patient safety is mandatory."
After engaging the unions in talks on the policy, Babineau said the company received significant support from workers.
"We were doing it for patient safety," she said. "We spent a lot of time explaining that to the point where we didn’t have any resistance. In fact, we had strong support from our nurses’ union in particular."
In the past, Babineau explained, entire nursing units had to be quarantined in an attempt to stop the spread of flu. Since the implementation of mandatory vaccination or masking, no quarantines have been necessary and employees are taking fewer sick days.
"For every employee in Horizon last year there was four hours less sick time during flu season," Babineau said. "Now it could be some other factor — it’s anecdotal at this point. I’m waiting to see if it’s the same way this year."
Employers across Canada have contacted Babineau for information on Horizon’s flu policy, and she believes similar policies across the country would have a significant impact on employee and patient health but said collaboration with unions is the key to creating a smooth transition for health-care workers.
"We involved unions in really good dialogue prior to and during the implementation of our policy," she said. "They weren’t left out on a branch just to find out about it."
A lack of communication contributed to HSA’s resistance to British Columbia’s policy, Avery said.
"There was no consultation with front line health care workers at all with regards to this policy," she said.
Health-care workers and their representatives were seeing the policy for the first time when it was originally introduced in August 2012. It became effective in December of the same year.
"There are situations where the mask is a barrier to healthcare workers doing their job effectively," Avery explained. While the arbitration ruling emphasized employers are legally obligated to accommodate health-care workers who cannot comply with the policy, it’s unclear how that process will take place.
Like the confusion surrounding accommodation, many of the union’s grievances — some of which were addressed by revisions to the policy — could have been avoided had the government simply consulted with unions, Avery said.
"It would have prevented a whole lot of these types of after-the-fact issues if we had had a say in developing this policy, but that was not the case."
Even after revisions were made, HSA still has major concerns about the policy. Specifically, Avery said, in relation to how the policy is going to be implemented. At a board meeting with the health authority recently, she said serious doubts were raised.
"I’m looking around the table and I’m thinking ‘When’s the last time any of these people were on the front line in health care?’ In fact, some of them have never been on the front line and wouldn’t even know what kind of situations a health-care worker can be in where the mask is an issue. I just don’t trust that the people who have written the policy are on the front lines of health care enough that they understand the needs of health-care workers."
