Mandatory flu shots shot down

It's flu shot season again and paramedics in Ontario are free this year to choose whether they’ll take the vaccine or not. Health Minister Tony Clement announced last month that ambulance workers will no longer be required to take the flu shot to stay on the job.

The announcement comes after a two-year battle between paramedics and the province over mandatory influenza immunization. The union argued employers should not have the right to force employees to take the shot.

“We’re not opposed to flu shots,” said Sid Ryan, president of the Canadian Union of Public Employees, the union representing the Ontario paramedics. “But they should not be forced on employees no matter how noble the cause. (The members) sincerely believe they should have the right to dictate what goes into their own bodies.”

A paramedic in North Bay, Bill Kotsopoulos, became the “poster boy” for the union’s campaign last December when he refused to take the flu vaccine and was sent home. The hospital took a hard line in its approach, Ryan said. “They weren’t listening to any kind of compromise.”

The union, which represents some 5,000 paramedics across Ontario, rallied around Kotsopoulos with members refusing to take the flu shot and those who had taken the shot refusing to show proof. They adopted the slogan: My body. My choice.

In 2001, only eight per cent of the 790 paramedics in Toronto received flu shots and many hospitals threatened suspension. The government finally backed down in early October.

The case sparked a fiery debate over the balance between public safety and human rights, particularly in the health-care sector.

There is a growing trend towards the protection of individual and collective rights, said Ryan.

“We now have the Charter of Rights and it allows us to challenge issues that we didn’t have the grounds for challenging in the past. It gives us the ability to push forward,” he said.

Other provinces have fought the same battle with different results. A recent arbitration case in Alberta ruled that the employer (Carewest — a long-term care facility in Calgary) was allowed to send staff home without pay if a flu outbreak occurred and they didn’t take the shot. People were only exempt for medical and religious reasons.

There was a flu outbreak in 1999 and several workers were sent home for days without pay. The court ruled the hospital’s actions were reasonable in that: the employer was a long-term care facility and had a vulnerable elderly population, the policy only applied to unit employees who had frequent and intimate interaction with patients, and the policy only applied during outbreaks, not during the entire flu season.

“The real message (from all these cases) is that the law is in the process of being developed,” said Gavin Marshall, associate lawyer for Fasken Martineau DuMoulin in Vancouver. “There are all sorts of arguments on either side in the imposition of mandatory flu shots or other medical treatments.”

In the Carewest case, there was a legitimate balance between the privacy concerns of employees and patient safety concerns, Marshall said. The elderly can die of the flu “it’s the straw that can break the camel’s back.”

In many cases, hospitals don’t implement mandatory immunization rules, but they have policies similar to Carewest — if an outbreak happens and a worker is not vaccinated, the employee is sent home.

If an employer is going to implement a policy it should be as narrow as possible, said Marshall. It should be limited to those who would be directly involved — ideally this would be bargained in a unionized setting. Also, the employer should examine options for employees who don’t wish to take the shot.

“Try and find non-related work for them to do if any exists...allowing them to assume other tasks within the workplace instead of sending them home,” Marshall said.

Donna Rubin, CEO of the Ontario Association of Non-Profit Homes and Services for Seniors (OANHSS), said it isn’t mandatory for staff in long-term care facilities to take the flu shot, but they do follow protocol during outbreaks.

“If there was a flu outbreak, staff that are immunized can work, but if they’re not they can take an anti-virile and work,” Rubin said. “If neither of those are done then they’re not allowed to work but that’s (only) in effect during an outbreak.”

OANHSS encourages flu shots and has found incentives work better than enforcement, said Rubin.

“Taking that kind of heavy-handed approach doesn’t usually work in terms of getting people to comply,” she said. It’s a human rights issue, but if you’re working with the elderly it can help save lives.

Some long-term care homes have competitions where the unit with the most people immunized can win prizes. Others offer flu clinics during shifts so staff can take their shots on the job. Public health agencies also run community competitions for facilities with the highest response rate (the most staff and residents to take the shot).

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