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HomeMy WebLinkAbout1989-0859.Arnold & Zozzolotto.91-03-27 ONTARIO EMPL. OY~-~ DE L.A COURONNE CROWN EMPLOYEES DE I.'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT , BOARD DES GRIEFS .... OUNOA$ STREET WEST, SUJTE 2';O0, TORONTO, ONTA.qtO, USG' ;Z8 TEL,EPHONE/T~L~PHONE: (4'~6] 326-r388 RuE DUNDAS OUEST. BUREAU 2~00. TORONTO (ONTARIO), M5G 1Z8 FAC$tMILE/T£Lf:'COPIE : (416j 326-13-~6 859/89, 862/89 IN THE ~iATTER OF AN ARBITR~TION Under THE CROWN EMPLOYEES COLLECTIVE B~RG~INING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Arnold/Zozzolotto) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services') Employer BEFORE: R. Verity vice-Chairperson W. Shipman Member F. Collict Member HOR THE P. Chapman GRIEVOR Counsel Ryder,~ Whitaker, Wright & Chapman Barristers & Solicitors FOR THE C. Peterson EMPLOYER Counsel Winkler, Filion & Wakely Barristers'& Solicitors HE~RING: December 21, 1989 April 11, 1990 November 1, 2, 28, 1990 DEGISION In this matter Jerry Arnold and Lo-Ann Zozzolotto, then Correctional Officers at Metropolitan Toronto West Detention Centre, filed individual grievances to the effect that the Ministry's April 1989 Communicable Diseases Policy violated Article 18.1 of the collective agreement in that it failed to make reasonable provisions for their health and safety. These grievances arise in the context of increased anxiety about Acquired Immune Deficiency Syndrome (AIDS) in the workplace and a change in Ministry policy regarding the handling of inmates with communicable diseases. Article 18.1 reads: The Employer shall continue to make reasonable provisions for the safety and health of its employees during the'hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. A brief factual background is essential to understand the grievor's concerns. In 1985 the Ministry brought into custody the first known inmate who tested positive for the AIDs virus HIV (Human Immunedeficiency Virus). The- Union and the Ministry combined to produce a booklet in 1985 entitled "AIDS - Information and Guidelines for Correctional Employees" (.Exhibit 13). The booklet specified that "medically valid isolation procedures" must be taken to identify and isolate inmates infected with the AIDS virus. Similarly, it specified that "only those who are specifically trained and properly equipped should be involved with the supervision of isolated AIDS inmates. In general terms, inmates were placed in isolation for all serious communicable diseases and officers were told the category of precaution that was required. HoweveF, with the passage of time.mhd increased knowledge of both AIDS and-Hepatitis "B", concerns were expressed about the wisdom of isolating inmates in order to prevent the transmission of blood borne pathoMens. Briefly stated, there were concerns about the confidentiality of such medical information and the likelihood of discrimination against infected inmates in a manner that would unnecessarily restrict their basic right~ and privileges. ~n 1988, the Ministry provided a voluntary vaccination program, free of charge, for Hepatitis "B" for all correctional officers. 4 In 1989, OPSEU issued a thoughtful and informative publication entitled "HIV Infection And AIDS - A Guide to Worker Protection". In April 1989, the Ministry introduced a new comprehensive communicable diseases policy (Exhibit 8) which applied to all communicable diseases so designated under the H~alt~ PrQt~ctio~ and Promotion Ac~, 1983 R.S.O. c.10. The new policy makes it clear that "the control of communicable diseases in Ontario is the responsibility of the Medical Officer of Health under the provisions of the ~e~.l_t~Q.t_~_Q~i0J~_a~_R~QmQ~iQn_A~t. Section 27(2), 37(1) and (2) of the Act requires chief administrators and physicians in a correctional facility to report to the local Medical Officer of Health any person detained in the facility who is infected with a "reportable disease". The Medical Officer of Health may order the chief administrator of the facility to "take specific action to prevent the spread of the infection within the correctional facility". A significant change in direction was the Ministry's stated goal "to manage offenders with a communicable disease where it is clinically and operationally possible, in the general institution population .... ". This meant that inmates identified as c~rrying the AIDS virus would no longer remain in isolation. The policy went on to state that mandatory testing of inmates is not permitted at this time. The thrust of the' new policy was that "universal medical precautions" will be applied by all correctional employees. In addition, category specific isolation precautions would be maintained for communicable diseases in the respiratory and enteric categories based on the knowledge that universal precautions do not prevent transmission in those categories. Universal medical precautions are recognized procedures which assume that every person has a communicable disease. For correctional officers, this method is used to protect employees, to the extent possible, from all identified and unidentified disease. For correctional officers, universal medical precautions consist of hand washing techniques and certain "protective'barriers" to minimize the workplace hazard of contact with potentially infectious blood'substances. The protective barriers include "silky touch" latex gloves, packaged latex surgical gloves, trionic gloves, mess kits (for use in the absorption and disposal of potentially harmful blood and body spills), protective eyewear and outerwear, as well as pocket ventilators. 6 The Ministry developed a package of written materials to support the policy which included Communicable Disease Information Package, 1989 (Exhibit 5), aommunicabie Disease Training Manual, 1989 (Exhibit §), Communicable Disease Trainin~ Program, 1989 - Instructors Manual (Exhibit 7). The supporting materials indicate that HIV is transmitted through three primary sources: (1) Sexual contact with an infected individual; ~2) Parenteral exposure to infected blood or blood products (including needles shared among intravenous drug users); and (3) Perinatally from an infected mother to her child. The materials indicate that in the correctional setting, universal medical precautions apply to blood, body fluids which are known to carry blood borne pathogens such as HIV and Hepatitis "B", i.e. blood, seminal fluids, vaginal fluids, saliva, amniotic fluids, body fluids containing visible blood. In addition, the material states that handwashing after exposure to saliva minimizes any possible risk of salivary transmission of HIV and Hepatitis "B" virus. The following universal precautions are specified: (1) Gloves should be worn if contact with blood, semen, and saliva is likely. Contaminated uniforms should ~be-'isolated and dry cleaned. (3) Contaminated surfaces should be cleaned with Javex disinfectant solution. (4) Handwashing. Following the announcement of the new policy in April, 1989, the Ministry embarked upon an ambitious program to train approximately 8,000 correctional officers in 54 institutions throughout Ontario. At least two representatives from each institution attended regional training sessions conducted by correctional officer Ken Lee from the Monteith Correctional Centre and nurse Nancy Ogden. Once trained, the representatives returned to their respective institutions and commenced the training of correctional officers in a series of seminars on communicable diseases with a particular focus on AIDS and Hepatitis "B". Metropolitan Toronto West Detention Centre is a maximum security institution which accommodates approximately 629 inmates with a staff or 400 including approximately 250 correctional officers. The grievor Jerry Arnold attended a six hour seminar at Metro West on Ma~ 28, 1989 and was instructed by nurse Shirley Groux and correctional officer Gary Sanderson~ At the hearing, counsel for the Union withdrew the settlement requested in the original grievances and substituted the following remedy: A/ A declaration that the Communicable Diseases Policy of the Ministry of Correctional Services, dated April, 1989, violates Article 18.1 of the Collective Agreement, in that it fails to make reasonable provision for the health and safety of employees% B/ An order that the Communicable Diseases Policy of the Ministry of Correctional Services ("the Policy") be modified to include the following provisions: (1) Where an offender is identified as a carrier of a communicable disease, correctional staff who come into contact with that offender in the course of their duties will be warned of the nature of the hazard posed by that disease. This hazard warning will identify the specific category of precautions (ie "blood body fluids", "respiratory", etc.) to be utilized to prevent transmission of the disease. The hazard warning will be placed on the Unit Notification Card for the infected offender; (2) Criteria should be developed to govern the decision of the administrator to place offenders with communicable diseases into a special needs unit, the s'egregation unit, the health care unit, or a community hospital, rather than placement in the general population. These criteria should include, (a) threatening or aggressive behaviour by the offender towards the staff; (b) a lack of co-operation by the offender in following precaution~ to prevent transmission of the disease; (c) the offender engaging in high-risk behaviour; in addition to the medical needs of the inmate. (3) The criteria for the placement of inmates with communicable diseases should be detailed in writing and should be made available to correctional staff. In additiqn, staff should be trained in the identification of high-risk behaviour, (4) When a member of the correctional staff believes that an offender with a communicable disease evidences one or more of the criteria for placement outside the'general population, they shall initiate.a request for reassessment by .filing a written report with the shift IC. This report will be considered by the administPator and/or health care staff in determining whether placement outside of the general population will be implemented. The decision of the administrator will be communicated to the correctional officer who initiated the reassessment. C/ An order that the Policy be consistently and effectively implemented by the Mihistry at the Metro West Detention Centre. In particular, the Ministry should:- (1) Ensure that all protective and clean-up equipment described in the policy is available and accessible to all staff in all areas of the institution; (2) Provide at least one Additional sink for hard-washing by staff in the female building; and, (3) Ensure that training with respect to the procedures and concepts in the policy be delivered by personnel.with special qualifications in the area of communicable diseases. Training should include demonstrations of the proper use of the 10 protective and clean-up equipment described in the policy. Jerry Arnold was the Union's principal witness. He is a correctional officer currently working on Unit 2B at Metro West and was hired in June of 1986. Mr. Arnold testified that while he agreed with the concept that AIDS inmates should not be isolated, he had concerns about the adequacy of universal precautions in the blood and body fluid category. The thrust of his testimony was that inmate Unit Information Cards should contain hazard warnings for the blood and body fluid disease category. In cross-examination, when asked why he wanted to know this additional information, Mr. Arnold ~xplained that he would be better prepared to handle the situation and that the universal. precautions system causes unnecessary delay. The grievor testified in some detail about the unsatisfactory nature of the training on communicable diseases at Metro West. Similarly, he complained that many of the "protective barriers" used in the universal medical precaution system were late in arriving and that some of the equipment such as packaged latex gloves, trionic gloves, mess kits, protective eyewear and outerwear were not readily available because they were stored in supervisors' offices. 11 The only other witness for the Union-was Lo-Ann Zozzoiotto who gave brief testimony. Her complaint focused on the inadequacy o'f one sink on the female unit at Metro West ' She testified that following a search it was.customary to wait in line five to six minutes in order to wash her hands. The Employer called three witnesses: Dr. Paul Humphries, Senior Medical Consultant for the Ministry; Mrs. Barbara Lynn, a Senior Nurs~ who ser~es as Health Care Co- Ordinator at Metro West; and Peter Northcott, then Senior Assistant Superintendent (Support Services) at Metro West. Dr. Humphries gave detailed evidence as to the background and rationale for the new policy on communicable diseases and of the input into that policy by the Ontario Human Rights Commission and the Chief Medical Officer of Health. He testified that currently there are inmates in various correctional institutions throughout Ontario who have tested positive for HIV and that in the absence of mandatory testing there are many more that remain unidentified. Dr. Humphries testified as to the need for universal precautions and maintained that if properly adhered to that "the risk of transmission of AIDS in a facility is very, very minimal". He stressed the 12 confidentiality aspect of labelling HIV patients and the fact that confidential health care information cannot be shared without the written authorization of the inmate. He acknowledged that an offender with AIDS who exhibits aggressive behaviour may be placed in the medical unit, the special needs unit or the segregation unit because of his behaviour, but not because of the disease. In his words "correctional officers are well trained to recognized high risk behaviour". The Doctor maintained that there was minimal risk of HIV infection from being cut b~ contaminated needles, or other sharp instruments such as knives, but readily acknowledged that there is debate as to the possible transmission of AIDS through puncture of the skin. In Dr. Humphries' opinion, the training seminars on communicable diseases were adequate and properly presented by a nurse and a correctional officer. Barbara Lynn is Senior Health Nurse at Metro West. She administers a staff of 14 registered nurses and one pharmacist. She indicated that a physician visits the institution's clinic each morning Monday to Friday and is on call during other hours. Mrs. Lynn participated in the regional training sessions on communicable diseases and has monitored the performance of the institutions communicable diseases seminar. In particular, she attended the seminar on May Z8, 1989 and was satisfied that the course content had been properly addressed. However, she did acknowledge that the policy was not reviewed "word by word". Mrs. Lynn prepared the directive on Communicable Diseases - Protective Barriers dated September 21, 1989. That directive explained the use of the various protective devices many of which were stored in supervisory offices (either O.M. 14 or O.Mo 16). In particular, Mrs. Lynn explained that the trionic gloves were intended to be used for planned hostile situations rather than spontaneous hostile situations~and were to be used only on the instructions of an O.M. 14. Peter Northcott verified Mrs.' Lynn's explanation as to the intended use of trionic gloves. He acknowledged that trionic gloves would be of assistance in any hostile situation, but even if located on the unit, there would be no time to put them on in a spontaneous hostile situation. Mr. Northcott maintained it is impossible to completely protect oneself against inmate assaultiveness. The nature of the grievors' complaints is that in responding to concern for inmate rights, the focus of the new Ministry policy on communicable diseases has swung too far from 14 the'duty to make reasonable provisions for the health and safety of employees during hours of employment. One of the Union's principal concerns is that blood body fluid diseases have been excluded from the specific hazard warning system. The grievors request several modifications to the policy. Ms. Chapman maintains that there is a duty to warn employees of a known hazard in the blood, body fluid category and that some form of warning system be instituted naming the category of precaution without naming the disease. Similarly, Ms. Chapman contends that the placement of inmates should be made not only on medical grounds but also on behavioural factors to further prevent the transmission of disease. Finally, she maintains that many of the protective barriers were slow .arriving and are not readily available at Metro West. In support of its submissions, the following authorities were submitted. QP~ (E~hiD~ ~.~d M~pistrv of Health £959/87 (Wright); and OPS_~U Minis'~rv of Correctional Sgryices £350/88 (Samuels). The Employer maintains on the expert testimony of Dr. Humphries that universal medical precautions system is the prq~er method, and in the absence of any medical evidence to the contrary, the Board must find that 'the policy provides reasonable protection for the health and safety of the grievors. Mr. 15 Peterson argued that the grievors failed to introduce any evidence to demonstrate that the new communicable'diseases policy places the grievors' health and safety at risk. Counsel referred the Panel to the following authorities: OPSEU (Union q~ievance) and ~inistry 9f Correctional Services, #69/84, 70/84 (Samuels); . OPSEU (Ro Bell et al) and Ministry of the Solicitor General, #665/84 (Verity); OPSRU (Joseph Brelik et al) an~ Minis%fy o~ Correctional Services, #1466/87, '(Dissanayake); Walton v. Treas-rv ~Qard (Correctional Retraces Cana4a) (1987), 16 C.C.E.L. (Bendel); and Re l.oomis Armour_eA Car Seryicem l,%d. an~ Miscellsneous Workers. Wholesale and Retail Delivery Dr~vers ~nd ~e]pers Union, Local 351 (198~), 4 L.A.C. (3d) 341 (Larson). It is understandable that employees would have concerns regarding the adequacy of Ministry'policy on the placement and handling of inmates infected with the HIV virus. This is particularly true of a disease such as AIDS which is of recent origin and for which there is no known cure. In these particular circumstances, we would agree with the Union's submission that there is no onus to prove an actual danger. Under Article 18.1 the Employer is obligated to continue to make reasonable provisions for the health and safety 16 of its employees during the hours of employment. The obligation is only to make reasonable provisions and there is nc guarantee to provide a to(ally safe working environment. However, correctional officer is not obliged to assume unnecessary risk. Until such time as a vaccine is developed for AIDS, there remains a potential risk, however remote, of transmission of the disease. The issue before us is whether or not reasonable precautions have been taken by the Ministry in accordance with the collective agreement. Under s.4~a) of the Act R.S.O. c.275, the ~inistry is required to "provide for the custody of persons awaiting trial or convicted of offences". Similarly, under s.20(2) of the ~t, the superintendent "is responsible for the custody and supervision of such person until the term of imprisonment is completed". For purposes of applying Article 18.1 to a given set of facts, we would agree with the flexible approach of Mr. Samuels in OPSEU (Unioa Grieya~ce) and_Ftinis~v of CorrectiQ.~.ai S~_.~v~ices £69/84 and £70/84, supra, where he states at pp. 7 and 8: It is necessary to balance the safety of the emD.Loyees I against the need for care and custody of the inmates and the purposes of the institution.,.- Proper p.kanning can reduce the potential or likelihood of incidents, but it is not possible to eliminate all conceivable risks. In applying the balancing test, the Union must establish that the balance has been improperly placed. On the evidence adduced and in the absence of any expert evidence to the contrary, there is no persuasive evidence to demonstrate an inappropriate employee risk of contacting blood category communicable diseases by adherence to universal medical precautions. Given the reassuring medical testimony of Dr. Humphries, and in the absence of any contrary medical evidence, we must find that the Employer has complied with the provisions of .Article 18.1. In the absence of mandatory AIDS testing of inmates, and the number of unidentified carriers of the-disease, from Dr. Humphries evidence it would appear that any form of category warning is medically unnecessary. Dr. Humphries assured us that the Chief Medical Officer of Health had reviewed Lhe new policy and that to date there has been no objection taken to that policy by any medical officer of health in Ontario. Fortunately, s~nce 1976, no one at Metro West Detention Centre or f6r that matter any other correctional .facility in Ontario, has contacted AIDS fr6m the workplace. ].8 We are satisfied that the Ministry has adopted a comprehensive and realistic policy on communicable diseases, in accord with current medical opinion, which reflects a proper balance between the rights of inmates and the health and safety of its employees. In our opinion, on the evidence adduced, there is no justification for any modification to the policy. Similarly, we find that the protective barrier equipment at Metro West is readily available to the employees and is in accordance with Ministry policy. Obviously, there was some initial delay ~t Metro West in providing all items of the protective equipment for institutional use. However, that defect was rectified at the time of Mrs.. Lynn's directive in September, 1989. In addition, we must find that the sink facility on the female unit at Metro West is adequate. Clearly, the Ministry has undertaken an extensive training program to familiarize ail Ontario correctional officers with a new policy with a special focus on AIDS and Hepatitis Ail correctional officers including new staff must have the b~nefit of the communicable diseases seminar. However, we find it difficult to understand why copies of the policy (Exhibit 8) were not distributed to ali correctional officers at Metro West. Although the risk of transmission of a communicable disease such ]9 as AIDS has been described a~ "minimaX", it is only common sense that in i~ight of employee concern copies of that policy be made available to each employee. For the above reasons, these grievances are dismissed. DATED at Brantford, Ontario, this 23~h day of March 199'1. ~ .~.~ .,~~...,~ r.-~,. :., "Addend~ attached" #859/89 & 862/89 IN THE MATTER OF AN ARBITRATION BEFORE THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (ARNOLD & ZOZZOLOTTO) and THE CROWN RIGHT OF ONTARIO (MINISTRY OF CORRECTIONAL SERVICES) ADDENDUM TO DECISION On balance, I am convinced that the panel has found correctly and the standard of reasonableness as identified in ]8.] of the collective agreement has been met by the Minis'try. However, in my mind, the seriousness of the issue gives added weight to a number of inconsistencies, and in some cases, apparent short comings, dealing in two specific areas. They are; ~. Equipment availability and 2. The thoroughness and delivery of the training seminars as outlined in exhibit 6 and 7 and presented to the correctional officer staff. The basic principle of the Universal Precautionary method of defense against contraction of communicable disease is the practice of treating all inmates as potential carriers. Listed among specific Universal Medical Precautions in the Communicable Disease Training Programme (Ex.#7) is protective equipment. Exhibit #4 lists these 'protective barriers' in greater detail. Clearly, unless a correctional officer - the front line of daily detention enforcement - is properly equipped with all tools listed in these exhibits, or at least given free access to them 'as required', the effectiveness of the precautionary method is undermined. 'Protective barriers, and the knowledge of how they are to be used, form the largest part of the protection process. More specifically, exhibit #6, page ]6, addresses procedure concerning "Fights and Assaults". Recognizing that compliance with the wearing of 'trionic gloves' is not always going to be possible, depending on the urgency of the situation at hand, every effort must' be made to afford the C.O. in question the ability to comply should the opportuntiy present itself. As the section concerning fights and assaults states in the Communicable Disease Training Manual; "When suddenly confronted with an altercation in which contact with blood or body fluids may occur~ a correctional officer must quickly make a critical decis[on. "Should I stop to put on gloves before intervening." This section contemplates situations where time may exist for the officer to utilize additional protection such as trionic gloves. I can only expect, that an experienced officer would in fact be aware of particular inmates where situations as such may be much more likely to occur. It should not then be acceptable practice that trionic gloves be kept within premises that may impede the quick and critical decision that the C.O. may have to make. Documented personal issue, issue upon request or storage within the unit should be considered. The only reasons given in evidence that can be viewed opposing improved availability were a vague reference to "security" of the equipment regarding bandages apparently missing from medical kits and suspected misuse. Trionic gloves are readily available to personnel in admitting and discharge and in segregation. As well, we heard in evidence that a pair is worn on the sargents belt. So should they be available to the correctional officer. With regard to training seminars conducted in the detention dentres, we have heard from Dr. Humphries that although he felt "pretty good about the trainers and training conducted", he couldn't say that everyone had done a "four star job." I would first like to express my confidence in the profes- sionalism and dedication of Dr. Humphries relative to the hugh task of first developing such a program and then overseeing its implementation throughout the correctional centres under his jurisdiction. It would be totally un- realistic to expect a "four star" job by every instructor in every class no matter how hard they were to try. However, I am concerned by statements in evidence .relating to the unavailability of equipment for proper demonstration and reduced training classes due to lack of facilities or lessened priority. It strikes me that if the response sheets mentioned by Nurse Lynn were made available to all C.O.s as well as the managers, we would then have a mechanism in place to ensure total satisfaction with universal precautionary procedure training and protective barrier instruction. In addition, should a C.O., or any other personnel for that matter, feel inadequately trained, they should have the ability to register for retraining. The importance of proficiency in the universal protection program for those in direct contact, cannot be overstated. ~anuary 28, 1991