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RVH stands behind its vaccination policy despite provincial decision on hospital workers

Barrie employment lawyer calls Ford government's decision to not make vaccination mandatory for hospital workers an 'election stunt'

Despite the Ford government’s recent announcement it will not make COVID-19 vaccination mandatory for hospital workers, the local hospital is standing by its decision to implement their own in-house vaccination policies.

“RVH remains steadfast in its commitment to the safety of our patients and those who care for them. Our patients expect that everyone caring for them, everyone they encounter in the hospital, is vaccinated unless they’ve been granted a medical exemption or human rights accommodation,” Royal Victoria Regional Health Centre (RVH) president and chief executive officer Janice Skot said in an email statement to BarrieToday.  

RVH recently terminated 39 employees for not complying with COVID-19 vaccination and testing policies. Another three professional staff are also no longer connected to the Barrie hospital.

“Currently, more than 99 per cent of our staff and physicians have chosen to be immunized and we continue to strongly believe that widespread vaccination is the way out of this pandemic,” said Skot. “RVH is the site of a regional cancer, cardiac and renal programs and cares for extremely ill, vulnerable patients who are often immune compromised.

"RVH must be able to say to all our patients, ‘we have done everything possible to protect you against COVID-19.’ Our patients and their families expect no less," she added. 

Scott Hawryliw, who's a Barrie-based civil litigation lawyer practising employment law with Stewart Esten LLP, told BarrieToday this week’s announcement by the provincial government was an “interesting," adding he believes it’s largely an “election stunt."

“I think it’s to position themselves so that the province isn’t the bad guy, but instead the hospitals are the bad guys for these terminations that have and will continue to happen," he said. "Although the government is saying surgeries will be cancelled, there’s apparently no data on that. They’re also alleging staff would be let go and couldn’t be replaced therefore leaving hospitals understaffed  and there’s apparently no data for that, (either).

“The other side of that coin is all these different groups that do have expertise in these areas are saying that’s not actually the case," Hawryliw added. 

The Ontario Nurses Association (ONA) issued a statement on vaccinations in August indicating its members are "both administering the vaccine and receiving it themselves. ONA recommends that all health-care workers receive the vaccine if they can, while recognizing that this is a decision that needs to be made by the health-care worker based on voluntary and informed consent, and where appropriate, with the advice of a health-care professional."

Hawryliw says RVH, along with any employer in the province, remain free to create and enforce their own policies. 

“It’s not that they can’t require the vaccine, it’s that they now have to be the bad guy and implement the policy," he said. "They’ve lost that kind of protection of it being mandated by the government. These policies can be justified and enforced, but the hospitals are being thrown under the bus.

“When they were terminated, the hospitals were acting pursuant to government requirements," the lawyer added. "Moreso, what I think you will see is hospitals being at risk and being sued by a few people who decide to take a run at them for their policy and for enforcing their policy, rather than the government taking the hit on that.”

All employers have an obligation to maintain a safe workplace, Hawryliw says. 

“A lot of times, this can be a one-off and can be very nuanced," he said. "You’re looking at balancing all the risk and the interests that are happening at a workplace. Are you working with a vulnerable population? Are you working with kids who can’t be vaccinated or age groups that can be? Some workplaces are just tight… and you can’t socially distance yourself. Are you inside or outside?”

Hawryliw pointed to a Sept. 22, 2021 decision by the Ontario Human Rights Commission (OHRC) as further protection for employers that have mandated vaccinations for employees.

“They (OHRC) proactively came out and gave a statement that they don’t view mandatory vaccinations as a breach of the Human Rights Code. We don’t really have much in terms of decisions from judges yet, so this is all an evolving area," he said. "But when (they) made that statement, it was a big day for this, because that was hanging over it before… wondering where they’d land on this.”

In a Canadian Press story published Wednesday, Premier Doug Ford said the government looked at responses from hospitals and other stakeholders, as well as "real-world evidence," and has decided to stick with its current approach, which allows unvaccinated workers to regularly get tested. A statement from Ford also said high vaccination rates in hospitals and strong infection-control measures mean hospitals are safe and can manage outbreaks.

Joshua Valler, senior associate at Barriston Law in Barrie, said should the local hospitals continue to mandate a strict vaccination policy rather than some sort of hybrid policy, where if you are unvaccinated you are required to get tested on a regular basis, they could be exposing themselves to a grievance from the relevant unions or associations representing the health-care providers. 

“We have seen a challenge launched by several individual nurses against the University Health Network in Toronto where the plaintiffs in that case sought, and received, an interim injunction prohibiting the health network from mandating vaccinations," Valler told BarrieToday. "While the relief was only temporary, the new policy from the premier may bolster any future challenges to mandatory vaccination policies within the health-care context.”

 

Collingwood General and Marine Hospital (CGMH) reported as of Thursday (Nov. 4) 97 per cent of employees, midwives, and credentialed staff have provided proof of vaccination against COVID or otherwise complied with the hospital's policy. 

The hospital requires all staff to be fully vaccinated or provide proof of medical or human rights exemption by Nov. 30 or be placed on unpaid leave.

Norah Holder, the hospital's president and CEO, said in a news release that the hospital wants to reach 100 per cent vaccination of all employees, midwives and credentialed staff, but took a "measured approach" to reach that threshold. 

Holder said that approach included risk assessments to make sure programs and services could continue.