Mandatory Masking 1.8% effective at best – Revisiting ONA court win against vaccine or mask policy

By: Greg Staley

Written on May 25th, 2021

In 2014-2015 and from 2016-2018 the Ontario Nursing Association went to court against the Sault Area Hospital, St. Michael’s Hospital, and the Ontario Hospital Association to get rid of the controversial vaccine or mask (VOM) policy. This policy was designed to “improve influenza immunization compliance” within the Healthcare Worker population (HCW).

The court decision from Arbitrator Hayes (2014-2015) can be read in full here. The decision from Arbitrator Kaplan (2016-2018) can be read here.

Hayes (2014-2015)

IPAC Committee Vaccine or mask policy is to “improve influenza immunization.”

The court took note of a Committee meeting of IPAC (Infection Prevention and Control Canada) that was held on October 9, 2013. In this meeting, the group “noted that the policy should be honest and transparent” referring to the VOM policy. They added that “the intention should be more clearly indicated as “to improve influenza immunization compliance.”

On November 13, 2013, Mr. Gagnon the Chief Executive Officer of SAH and Dr. O’Brien, the Chief of Medical

Staff and Director of Medical Care at SAH sent a Message to all SAH employees, physicians and volunteers that included the following:

“Given our low immunization rates last year, it is clear that we need to do something different. Although we are committed to the success of the approaches suggested in our consultations, if we have not reached the 70% target by December 31, 2013, we will implement the “immunize or mask” policy beginning January 2014.”

“Given our low immunization rates last year, it is clear that we need to do something different.”

Chief executive office of SAH and Dr. O’Brien to all SAH employees NOV.13, 2013

 So what was the Purpose of the VOM policy?

So essentially the VOM policy was put into place to increase influenza vaccinations in healthcare workers to hit an arbitrary target of 70% vaccination coverage. If you refused to get the shot you would be forced to wear a mask for the duration of your shift and for the entire duration of influenza season (4-6 months).

Ironically enough, there were “no outbreaks of influenza at the Hospital in 2013-2014 and no incidents of hospital-acquired influenza”(Line 103) but there was three Influenza A outbreaks on three units during the 2014-2015 flu season after the VOM policy was instituted. The court added that “Nine of the twelve patients affected had been vaccinated.”105 In addition, “three of the four staff who contracted influenza-like illness had been vaccinated for influenza.

Experts were in strong disagreement about 3 issues

According to the court, “experts were in strong disagreement about the following issues: (i) the extent that unvaccinated HCWs pose a risk to patients of giving them the flu, (ii) whether there is any serious risk that symptom-free HCWs will give patients the flu, (iii) whether masking HCWs serves any real purpose.”

The court noted that because the masking policy is asking people to wear the mask for four to six months of the year when they’re asymptomatic they (OHA/SAH] would have to provide a “legitimate evidence-based evidence that there is a concern about asymptomatic transmission because, if there isn’t, then what’s the point in wearing a mask?” Arbitrator Hayes added that “their case hinges on this.”

Dr. Gardham testified to the court “under subpoenae in support of the grievances.” Dr. Gardam, currently Humber River Hospital’s Chief of Staff said that “I feel people needed a reason to get you to wear that mask. And the reason was, well, you might be developing the flu, you don’t have symptoms yet, but you can still transmit it. Well, first of all, if that’s true, given the effectiveness of the vaccine, everybody should wear the mask.”

A big point made in this court case is that all HCWs should be forced to mask up during influenza season due to the ineffectiveness of the vaccines themselves if a VOM policy was to be put in place. It was hypocritical to cite health as the primary reason for the VOM policy while ignoring this blatant fact.

Are Masks effective in preventing transmission?

Arbitrator Hayes ruled that “there is scant scientific evidence concerning asymptomatic transmission, and, also, scant scientific evidence of the use of masks in reducing the transmission of influenza virus to patients.”

In speaking about the reasoning for his decision Arbitrator Hayes said “Although she referred to “good evidence” in her Report, Dr. McGeer gave oral testimony that: “It’s not great evidence…it’s hard to put a number on it, but you can’t walk away from this saying there is no evidence that wearing a mask prevents you from influenza”. She also said: “So the truth of the matter is that none of us are really experts in source control. There’s quite a limited literature.”

Dr. Bonnie Henry also testified that she wasn’t a “huge fan of the masking piece” and agreed that: “there’s very scant evidence about the value of masks in preventing the transmission of influenza”. It was also her view however that, although the evidence is “not conclusive”, “if healthcare workers are unvaccinated, wearing masks almost certainly provides some degree of protection to their patients”.

Ultimately Arbitrator Hayes came to the following conclusion in regards to masking and asymptomatic transmission. In his reasoning, he wrote “Having considered that material and the witness commentary, I conclude as

did the authors of the bin-Reza systematic review:

“There are limited data on the use of masks and respirators to reduce transmission of influenza… None of the studies established a conclusive relationship between mask/respirator use and protection against influenza infection.”

Arbitrator Kaplan (2015-2016)

In arbitrator Kaplan’s decision, he wrote “this case was tried over multiple hearing days over three calendar years. The evidentiary record is extensive: Volumes of scientific articles – cluster randomized controlled trials (hereafter “cRCTs”), observational studies, summaries, critiques, literature reviews, meta-analyses, commentaries, etc. and numerous expert reports, more than one hundred and fifty exhibits and thousands of pages of transcript… But at the end of the day, the evidence adduced here leads to the very same conclusion reached by Arbitrator Hayes.” Needless to say, extensive amounts of evidence were combed over.

Arbitrator Kaplan expounded on Hayes’s decision by saying that “Influenza is transmitted in a number of ways, but primarily through droplets emitted by an infected person. The virus droplet has to be shed and then transported in sufficient amount and close enough to potential recipients to infect them (and evidence was led that explored this process in detail).”

He continued “the question to be asked here, and which the Association answered, was whether these masks effectively prevent influenza transmission: Are they an effective means of source control? This answer to this question was “no,” and the Association pointed to the report and evidence of masking expert Professor Lisa Brosseau which Arbitrator Kaplan accepted.

Arbitrator Kaplan quoted the bin-Reza systemic review in his ruling as well which said “None of the studies established a conclusive relationship between mask/respirator use and protection against influenza transmission.” Arbitrator Kaplan noted that “Yet another study observed: “there is a lack of substantial evidence to support claims that face-masks protect either patient or surgeon from infectious contamination.”

There is a lack of substantial evidence to support claims that face-masks protect either patient or surgeon from infectious contamination.”

Bin-reza systemic review

He also added in his decision what the CDC had said on the matter. That is that “No studies have definitively shown that mask use by either infectious patients or health-care personnel prevents influenza transmission.” The CDC also stated, “while a facemask may be effective in blocking splashes and large-particle droplets, a facemask, by design, does not filter or block very small particles in the air that may be transmitted by coughs, sneezes or certain medical

procedures.” As another study indicated, “overall, the evidence to inform policies on mask use in HCWs is poor, with a small number of studies that is prone to reporting biases and lack of statistical power.”

Why This Matters

The same argument about mandatory masking we are facing today under COVID-19 but for HCWs played out in Canada’s court system in 2014 and again through 2015-2016. They lost in implementing their mandatory masking policy because the evidence supporting two critical factors was too scant to justify such a big ask.

Those two critical factors? The prevalence of asymptomatic spread and the effectiveness of masking in preventing Influenza transmission. Covid-19 is very much an influenza-like illness in how it spreads.

In addressing these factors, the court ruled that “evidence concerning asymptomatic transmission and mask effectiveness–may be described at best as “some” and more accurately as “scant.”

CDCs recent study suggests masks 1.8% effective at best

The study from the CDC titled “Association of State-Issued Mask Mandates and Allowing On-Premises Restaurant Dining with County-Level COVID-19 Case and Death Growth Rates — United States, March 1–December 31, 2020” says that “two outcomes were examined: the daily percentage point growth rate of county-level COVID-19 cases and county-level COVID-19 deaths.”

The study says that “during March 1–December 31, 2020, state-issued mask mandates applied in 2,313 (73.6%) of the 3,142 U.S. counties.” The “mask mandates were associated with a 0.5 percentage point decrease (p = 0.02) in daily COVID-19 case growth rates 1–20 days after implementation and decreases of 1.1, 1.5, 1.7, and 1.8 percentage points 21–40, 41–60, 61–80, and 81–100 days, respectively, after implementation (p<0.01 for all) (Table 1) (Figure).

The study also added that “daily case and death growth rates before implementation of mask mandates were not statistically different from the reference period.” In other words, the evidence of their effectiveness was scant. Although they then turn around to say it’s very effective a couple of paragraphs later (can’t make this up).

Findings in CDC report subject to 3 limitations

The study says that “the findings in this report are subject to at least three limitations.” The first is that “although models controlled for mask mandates, restaurant and bar closures, stay-at-home orders, and gathering bans, the models did not control for other policies that might affect case and death rates, including other types of business closures, physical distancing recommendations, policies issued by localities, and variances granted by states to certain counties if variances were not made publicly available. Second, compliance with and enforcement of policies were not measured. Finally, the analysis did not differentiate between indoor and outdoor dining, adequacy of ventilation, and adherence to physical distancing and occupancy requirements.

So let me close out this article by breaking down the CDC report on the effectiveness of masks. In the best-case scenario that the CDC presents masking is only effective at reducing mortality and case growth by 1.8 percent. All of the harm done to children over mandatory masking for 1.8% – at absolute best! All the headaches and lack of personal connection with one another over 1.8%.

The models didn’t account for “other policies that might affect case and death rates” including but not limited to other types of business closures, physical distancing recommendations, compliance with and enforcement of the policies wasn’t measured in any way so there is no way to know that masking is the reason for the reduction. And on top of all of that, the analysis did not differentiate between the adequacy of ventilation or the adherence to physical distancing and occupancy requirements.

In other words – this analysis is garbage. Nothing more than something that was already known – masks have scant evidence that they protect from or prevent transmission and yet they have been forced through as a mandatory policy in Canada. Perhaps our government’s reasoning is the same as the OHAs and the various hospitals involved in the court case against the Ontario Nursing Association – masks are a tool that can be used to increase uptake in vaccinations. This time instead of influenza though it’s Covid.

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Published by Greg Staley

Greg Staley is a husband, and a father to 3 beautiful girls. He is a concerned citizen who is closely watching his government's actions through critical thinking, and assessment of all qualified and relevant data. He believes in going to the Primary sources of data at all times if possible.