Members at Maplewood win OLRB decision: plexiglass partition ordered to be installed at nurse’s station

On December 22, 2020, the Ontario Labour Relations Board (OLRB) awarded a win to members at Maplewood Nursing Home in Brighton.

The situation began in early May 2020, when Karen Vaughan, a nurse at Maplewood and the Recorder for UFCW Local 175, emailed the home’s administrator about concerns that the dynamics of the nurse’s station posed a threat as an exposure point for COVID-19. Karen asked for a plexiglass barrier but the administrator did not reply to her email.

The nurse’s station, which is located at the connecting point of two hallways so that both halls are visible, sits behind a countertop that is five feet high and one foot deep. On the working side of the station is a built-in desk where up to three staff can be at one time and still be physically distanced. The area is used to complete charting, computer work, and other administrative duties, which means that while working there, most employees’ attention is on the computer or paperwork and not on who is approaching from the hallways.

Specifically, employees expressed concern over residents who approach the counter unannounced that are standing above the employees at the station and speaking down, over their heads.

In addition, many of the residents have cognitive impairments that make it difficult to ensure they wear their masks properly, if at all. It can also be difficult to anticipate the behaviour of some residents when they approach the station unexpectedly. In one example provided, a resident standing on the outside of the station attempted to remove the mask of an employee behind the desk.

Later in May, member Jane Melvin submitted a Report of Hazardous Working Condition or Practice to the employer on behalf of the Joint Health & Safety Committee. While this report did receive a response, the response was ‘No plexiglass’ and that ‘the residents are more at risk than staff.’

The Union then filed a complaint with the Ministry of Labour, Training & Skill Development. On June 4, 2020, a Ministry inspector conducted a field visit via telephone. The Inspector failed to provide an order for the barrier. Administration continued to argue that there was more risk to the residents from the staff and that it was unaware of other institutions with a plexiglass barrier at the nurse’s station. The Administration further argued that to install a plexiglass barrier would have a negative impact on the residents’ experience in their home.

OLRB Vice Chair Mitchell, however, was unconvinced by this argument and found that installing a temporary barrier – which the employer admitted was not a cost that would cause undue hardship – was in keeping with Section 25(2)(h) of the Occupational Health & Safety Act (OHSA) which states that it is the employer’s duty to ‘take every precaution reasonable in the circumstances for the protection of a worker.’

“That this very reasonable protective measure would be ignored and then denied by the employer is appalling,” said President Haggerty.

“The general attitude of the employer on this matter seems to belittle the valid concerns of our members. A plexiglass barrier like this is just one of many steps employers should take to help protect employees especially considering the serious ramifications of COVID-19 outbreaks within long-term care facilities.”

Applying the Precautionary Principle in workplace health and safety means to eliminate hazards before they cause harm. Staff are required to wear goggles and masks at all times, and gloves and gowns are available as well. But, the use of these items doesn’t negate the need for further levels of protection. In fact, PPE is considered the last protective barrier for a worker in terms of the Hierarchy of Hazard Controls.

When residents or visitors stand at the nurse’s station, they are less than two metres away from employees. This close proximity coupled with a lack of mask-wearing and the cognitive impairment of many residents, are reason enough to provide additional protection to the employees working at the nurse’s station.

Vice Chair Mitchell found that the protection gained by taking this reasonable measure for the safety of the workers was worthwhile.

“. . . the installation of a plexiglass or similar barrier at the countertop of the nursing station in the Maplewood Nursing Home in Brighton, Ontario is a reasonable measure for the protection of the employees so long as the threat of the spread of the COVID-19 virus is present . . .”

“Our healthcare members are fully aware that their job has inherent risks in terms of COVID-19,” said President Haggerty. “But when a worker enters a resident’s room or other area of the home to provide care, that employee is in full PPE and can anticipate and prepare for the encounter. The nurse’s station leaves employees vulnerable to unexpected situations that could be mitigated at least in part by a barrier. The plexiglass isn’t a perfect solution but it’s absolutely a reasonable one, especially while our members continue to be at high risk of contracting COVID-19.”

In the Winter 2020 issue of Checkout, we published a great Arbitration win about duty to accommodate. Read about that win here!

https://ufcw175.com/2018/11/01/maplewood-members-of-ufcw-local-175-at-work/

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