The N95 must be worn in CHSLD, decrees a judge

March 24, 2021
Contrary to what health authorities have asserted during the bulk of the pandemic, procedural masks do not adequately protect workers in hot and lukewarm areas of CHSLDs against the coronavirus, a judge of the Administrative Labor Tribunal ruled in a decision tough on the government and its experts.

Posted on March 23, 2021 at 8:16 p.m.

Katia Gagnon
Gabrielle Duchaine
It is in the context of a case opposing four CHSLDs – Vigi Mont-Royal, Vigi Reine-Élizabeth and Vigi Dollard-des-Ormeaux and Lionel-Émond, which reports to the CISSS de l’Outaouais – to their employees that the judge looked into the issue of personal protective equipment and the organization of work during the pandemic. The workers felt that they had been poorly protected and the judge agreed with them in good part. The court heard from more than 20 witnesses, including several experts and healthcare workers, and consulted numerous scientific opinions.
According to Judge Philippe Bouvier, CHSLD employees, including maintenance staff, should be able to wear N95-type masks at all times when they are in contact with confirmed or suspected cases of COVID. This decision contradicts the position defended by public health authorities, including the National Institute of Public Health (INSPQ), including in its most recent recommendations on the issue.
Until the beginning of 2021, the directives of the Ministry of Health reserved the N95 only for caregivers who were called upon to perform certain specific medical actions. Last February, a new directive extended the wearing of such masks to employees working in hot areas in outbreak, thus counting at least two positive cases.
“The court holds that one of the modes of transmission of the virus is by air or by inhalation. From this perspective, medical masks, whether they are described as surgical or procedural, do not represent effective protection for workers assigned to hot and lukewarm areas, ”writes Judge Bouvier. In passing, he flays an expert from the INSPQ who came to tell the court that the procedural mask offers as good protection as an N95, which he even accuses of using “false arguments” and of showing “fallacy”. . Another expert “is not aware” of the most recent developments in his field when testifying. The magistrate also notes that, “despite [un] emerging scientific consensus, the INSPQ maintains, in audience, the position that there are no air transmissions ”.
The court gives credence to the testimonies of the workers, qualified in certain cases as “disturbing”. Via cries, sputum, cough or excreta that come from patients, employees, whatever their function, are very often exposed to aerosol particles, and are therefore in danger, notes Judge Bouvier.
In its decision, the court orders the establishments in question to “provide all workers intervening in lukewarm or hot areas with a resident suspected of or suffering from COVID-19, a type N95 respiratory protection device. But logically, believe the unions who are at the origin of the legal proceedings, this way of doing things should apply in all the CHSLDs in the province.
Vigi Santé singled out
The judge also considers that the two employers concerned, the Vigi Santé group and the CISSS de l’Outaouais, “poorly protected” their employees during the pandemic, by delaying the establishment of red zones and buffer zones, and by maintaining traffic. between the red and green zones of their establishments.
A survey of Press recently showed the chaos that reigned in several centers of the Vigi group, which has 15 CHSLDs across Quebec. Eleven have been affected by COVID and four have experienced death rates exceeding 30%.
The Vigi Santé group has not “fulfilled its obligations in terms of risk areas and the creation of teams dedicated to providing care in these areas”. Numerous testimonies have reported of areas marked off simply with adhesive tape on the floor. However, the judge considers that the Vigi group has fulfilled its obligations in terms of maintenance of its ventilation systems and distribution of PPE to its staff.
The employers in particular alleged, in their defense, the shortage of staff. “The obligation of employers to provide care and social services to their residents while avoiding a breakdown in service does not mean that this service should be done in defiance of their obligations in terms of health and safety. and integrity with regard to their workers, ”the judge ruled. Nor can employers use public health guidelines “as a safe-conduct to evade their obligations.” ”
The Interprofessional Health Federation (FIQ), which was the driving force behind the complaint in the CHSLDs of the Vigi group, said it was extremely satisfied with this judgment. “After a year of battle, we were impatiently awaiting this. The judge comes to say that we cannot avoid the law on health and safety at work. If we had better protected our workers, there would certainly have been fewer deaths. We are convinced of that, even if we will never be able to prove it, ”says Linda Lapointe, responsible for health and safety at work at the Fédération interprofessionnelle de la santé (FIQ).
“This is an important judgment, and the government must send a clear signal to all health establishments: they must respect this judgment in anticipation of a third wave,” adds the president of the FIQ, private sector, Sonia Mancier.
“I hope that the government will not dare to challenge this decision,” adds Jeff Begley, of the Federation of Health and Social Services of the CSN. We’ve been saying all this for a long time. It’s confirmed by the court. And we hope that it will be applied everywhere quickly. ”
Invited to react to the judgment, the office of Minister of Health Christian Dubé indicated to take note of the court’s decision. “We will take the time to assess its implications and we will communicate in full transparency the follow-up to this file, in due course,” said the Minister’s press secretary, Marjaurie Côté-Boileau.
“The priority has always been and always will be to adequately protect health care personnel. There is no compromise to be made on this. As the INSPQ recently revised its recommendations concerning the wearing of N95 masks, our public health experts have chosen to go even further and make them accessible in hot areas. Note that this decision was made in conjunction with the CNESST. Thus, N95 masks are available to healthcare workers in hot areas in hospitals, medical clinics, FMGs, senior settings and others. ”
The INSPQ and the CNESST have for their part indicated that they want to analyze the judgment before commenting publicly.
The CISSS de l’Outaouais, directly blamed by the judge, asked us to direct our questions to the Ministry of Health. We also asked the Vigi Santé group, which declined our offer to comment on the judgment.

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