Arbitrator Confirms Health Care Employers’ Rights in Respect of Infectious Disease Emergency Leave

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In a recent dispute between the Ontario Public Service Employees Union (the “Union”) and Windsor Regional Hospital (the “Hospital”), a temporary order issued as a result of the COVID-19 pandemic was challenged at arbitration. The resulting decision issued by Arbitrator Trachuk is particularly relevant for health care employers in receipt of requests for certain statutory leaves of absence from employees in the face of ongoing operational challenges created or exacerbated by the ongoing pandemic.

 

Facts

The grievor, a part-time registered pharmacy technician at the Hospital, became pregnant with her second child in 2019. Initially, she advised her employer that she expected to take an 18-month pregnancy/parental leave. Ultimately, however, she ended up on medical leave from July 2019 to October 2019, at which time her son was born. She then commenced her planned pregnancy/parental leave.

In early October 2020, the grievor contacted her employer in order to request an extended, unpaid leave of absence that she indicated was required in order for her to be able to meet her childcare obligations. She indicated that the requested leave would start in April 2021 – being the end of her period of pregnancy/parental leave – and would last until January 2022. Under the applicable collective agreement, the grievor was permitted to request an unpaid leave of absence for legitimate personal reasons for up to 3 months, or longer if an extension were to be mutually agreed to. However, in response to her request, the Hospital advised that the request could not be granted for operational reasons.

In early February 2021, the grievor again contacted her employer in order to seek reconsideration of her earlier request for leave. This time, in response to her request, the Hospital advised that the request could not be granted in the absence of proof that the leave was required as an accommodation based on the grievor’s family status. In the subsequent weeks, there was some discussion between the grievor and the Hospital regarding her efforts to secure childcare at the end of her pregnancy/parental leave, as well as the Hospital’s suggestion that she temporarily work modified hours as an accommodation.

On March 17, 2021, the Union filed a grievance on the grievor’s behalf seeking, amongst other things, the granting of Infectious Disease Emergency Leave (or “IDEL”), a statutory leave of absence available under the Employment Standards Act. The filing of the grievance marked the first time the Hospital was made aware that the grievor was seeking statutory IDEL, rather than the unpaid leave of absence for personal reasons provided for under the collective agreement. The grievance was subsequently referred to arbitration.

Both the Union and the Hospital acknowledged that pharmacy technicians at the Hospital were required to work a number of shifts in a variety of positions to meet patient needs, including at the on-site COVID-19 vaccine clinic. There was also undisputed evidence that, at the time of the grievor’s request, not only were there a number of unfilled pharmacy technician positions because of other employees already being on leave, but also that a further 10 leave requests were pending. As a result, current pharmacy technicians were already having to work overtime and extra hours in order to meet patient needs. Finally, and perhaps most importantly, the parties both acknowledged that the province of Ontario had announced the availability of free childcare for the children of essential workers in response to the COVID-19 pandemic.

 

Decision

Once the grievance was referred to arbitration, the Hospital brought a preliminary motion contending that the Union’s bargaining unit members were not entitled to statutory IDEL by reason of Ontario Regulation 74/20 – Work Redeployment for Certain Health Service Providers. The regulation, which was first issued as a temporary order under the Emergency Management and Civil Protection Act (“EMCPA”) in response to the initial pandemic-related state of emergency and was subsequently continued under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, permits health service providers to, amongst other things, defer or cancel vacations, absences or other leaves, regardless of whether such vacations, absences or leaves are established by statute, regulation, agreement or otherwise. It also permits health service providers to suspend, for the duration of the regulation, any grievance process with respect to any matter referred to in the regulation. Of note, similar regulations have also been enacted and remain in force in respect of other types of employers as well, including, for example, retirement homes, long-term care homes, boards of health, social services administration boards, mental health and addiction agencies, and municipalities.

In support of its motion, the Hospital argued that the regulation applied to the grievor’s request for statutory IDEL and that it was therefore permitted to deny the request. It also argued that the grievance suspension provision contained in the regulation deprived the arbitrator of jurisdiction. For its part, the Union argued that because of the usual paramountcy of statutes like the Employment Standards Act over regulations, the regulation was of no force and effect in respect of statutory leaves like IDEL. It therefore argued that the Hospital could not deny the grievor’s request for statutory IDEL, nor could the grievance process be suspended by virtue of the invocation of the regulation.

In her decision, Arbitrator Trachuk began by acknowledging the reality that the personal needs of health care workers are being sacrificed for the needs of the rest of society and by recognizing that although this is unfair, it may very well be necessary in order to properly respond to the pandemic. She then went on to interpret the provisions of the regulation, finding that the plain and ordinary meaning of its words clearly set out and accomplish its legislative intention of providing health care employers with the authority to cancel or defer statutory leaves, even where an existing statute might provide otherwise. To this end, she noted that many temporary orders issued under the EMCPA in relation to COVID-19 impact or even conflict with existing statutory provisions but nonetheless prevail because they are emergency measures intended to respond to an emergency situation. Accordingly, she held that the Hospital was within its rights to defer or cancel statutory leaves, including IDEL, as required.

Arbitrator Trachuk rejected the Hospital’s argument in respect of jurisdiction. Rather, she found that the regulation’s reference to the “grievance process” specifically meant that it did not apply to the arbitration process. As a result, in her view, as the Hospital did not invoke the grievance suspension provision during the grievance process, it could not then invoke it during the subsequent arbitration process.

 

In Our View

This decision is significant for health care employers in that it confirms their right pursuant to the regulation to defer or cancel statutory IDEL where required in order to properly respond to the ongoing pandemic.

For more information on your rights and obligations as an employer dealing with COVID-19 or other issues, please contact Porter Heffernan at 613-940-2764J.D. Sharp at 613-940-2739Mélissa Lacroix at 613-940-2741, or Raquel Chisholm at 613-940-2755.