Intended for healthcare professionals


Flu vaccination: Toronto hospitals cannot implement staff “vaccinate or mask” policy, says ruling

BMJ 2018; 362 doi: (Published 14 September 2018) Cite this as: BMJ 2018;362:k3931
  1. Owen Dyer
  1. Montreal

A group of hospitals in Toronto, Canada, must abandon a policy of forcing healthcare workers to wear surgical masks during the flu season if they have not received the vaccine, an arbitrator has ruled.

The Ontario Nurses Association successfully argued that the requirement was unreasonable, illogical, and a breach of its collective agreement. That agreement stipulated that no nurse could be forced to accept the flu vaccination. But the “vaccinate or mask” policy mainly aimed to compel healthcare workers to accept vaccination, arbitrator William Kaplan found.

He rejected the contention of St Michael’s Hospital, the other party in the case, that this was primarily a patient safety measure. The hospital had failed to prove its case that masks reduce flu transmission, he said, calling the evidence “insufficient, inadequate, and completely unpersuasive.”

St Michael’s represented the hospitals of the Toronto Academic Health Science Network (TAHSN), which had refused to accept a previous arbitration ruling striking down “vaccinate or mask” policies throughout Ontario. In that 2015 case Sault Area Hospital had stood as the lead case against the nurses, and it lost.

But the TAHSN hospitals had argued that the ruling did not apply to them, claiming that their policy rested on a different rationale. The organisation includes some of the province’s best known institutions, including Sinai Health System, Sunnybrook Health Sciences Centre, North York General Hospital, and the Centre for Addiction and Mental Health.

A new case was opened, which has lasted three years and finished with an almost identical ruling. The nurses came armed with evidence from a 2017 PLoS ONE study that questioned four previous studies from long term care facilities that are often cited by hospitals in favour of flu vaccination in health workers.1

The lead author of the PLoS ONE study, Quebec epidemiologist Gaston De Serres, was a witness for the nurses, as was the US mask expert and industrial hygienist Lisa Brosseau, who testified that none of the surgical masks used in the hospital “exhibited adequate facial fit characteristics to be considered respiratory protection devices.”

While all parties to the dispute accepted that flu vaccination can reduce flu mortality it was only about 60% effective in good years, and in some years, such as 2017, it was almost completely ineffective because the wrong strain had been prepared for, said Kaplan.

If masks were really being used to prevent flu transmission, he said, it would therefore be necessary to give them to all healthcare workers, especially in years when the vaccine was ineffective. But St Michael’s had instead dropped the mask requirement in 2017 because the vaccine was not working. This suggested that the mask’s real purpose was not to prevent infection but to incentivise workers to get vaccinated in years when the vaccine was working.

Two senior nurses who said that they had experienced reactions to flu vaccination testified to the discomfort and humiliation of wearing the masks, which they said interfered with care and made patients nervous.

The Ontario Hospital Association said in a statement that it was disappointed by the decision, adding that “hospital leaders enacted this policy in good faith to protect these populations from what could be a potentially fatal illness.” The group pointed to British Columbia, where an arbitrator had reached the opposite conclusion. Most British Columbia hospitals now enforce a “vaccinate or mask” policy.

But similar policies in Alberta and Saskatchewan were later reversed and, with the latest ruling, Ontario is also now bucking a North American trend towards demanding flu vaccination in health workers.

A study published in June in JAMA Network Open found that, from 2013 to 2017, the proportion of US hospitals demanding health worker flu vaccination as a condition of employment rose from 37% to 61%.2


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