Arbitrator finds full-time employees are only entitled to paid sick leave if they are symptomatic or tested positive for COVID-19

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As the COVID-19 pandemic continues to impact our workplaces, many unionized employers may have been questioning whether employees who are quarantined (self-isolating) but who are not themselves ill or exhibiting symptoms of COVID-19 or do not test positive (or do not get tested at all) are entitled to any paid sick leave provided under a collective agreement. An Ontario decision rendered by Arbitrator Stout on May 26, 2020 has clarified the parameters of employee entitlement to compensation for COVID-19-related absences under a collective agreement. More specifically, Arbitrator Stout found that only full-time employees who were symptomatic or tested positive were entitled to paid sick leave under their respective collective agreement for their absence due to COVID-19, including any time they were no longer experiencing symptoms but were not yet allowed to return to work.

 

Background

The Ontario Nurses’ Association (“ONA”) filed a number of grievances at various Participating Nursing Homes (“Homes”) relating to nurses’ claims for payment of compensation in situations involving isolation due to the COVID-19 pandemic. While the grievances were filed under separate collective agreements between the Homes and ONA, the parties agreed they would be consolidated and heard as a “Central Rights Arbitration”.

The Arbitrator was tasked with determining full-time, part-time and casual employees’ pay/benefit entitlements, respectively, under the collective agreements or any employment-related statutes, such as the Employment Standards Act, 2000 (“ESA”), in each of the following categories/scenarios:

The employee is absent from work due to COVID-19 where:

  • the employee is symptomatic or tests positive;
  • the employee is asymptomatic and does not test positive or is never tested, and is absent from work due to:
    1. travel;
    2. exposure;
    3. public health or government guidance or direction;
    4. pursuant to the Award between the parties dated May 4, 2020 (see our previous Focus Alert for more information); or
    5. instruction from the employer to remain off work.

ONA took the position that all nurses who self-isolate due to COVID-19 are deemed sick or should be on a paid leave of absence from their workplace. ONA also argued that the Homes cannot hold an employee out of work without just cause or force them to take a leave of absence.

The Homes acknowledged that the provisions of section 50.1 of the ESA respecting infectious disease should apply to all the above-noted categories/scenarios. However, the Homes asserted that only those employees who are actually ill as demonstrated by exhibiting symptoms or testing positive for COVID-19 are entitled to any compensation.

 

Collective Agreement Language

The Collective Agreements between ONA and the Homes provide a disability income protection plan for full-time employees, which is payable when a full-time employee is absent from work “due to a legitimate personal illness or injury which is not compensable under the Workplace Safety and Insurance Act, 1997”. There is no relevant language with respect to part-time and casual employees in the collective agreements.

 

Decision

Arbitrator Stout began by noting that there was no dispute that section 50.1 of the ESA applied to all employees in respect to the above-noted categories/scenarios and they are all entitled to an unpaid leave and all entitled to have their benefits maintained in accordance with section 51 of the ESA. The real dispute was whether employees absent from work due to COVID-19 are entitled to any other form of compensation or income replacement benefits.

The Arbitrator reiterated that it is well accepted that employees are not entitled to be paid if they do not attend work. Any payment for an absence must be found in the legislation or the collective agreement. While the federal government has provided some financial assistance, neither they nor the Ontario government have mandated that employers pay employees for not coming to work when they are required to self-isolate.

Arbitrator Stout noted that the collective agreement language providing income protection benefits for full-time employees made it clear that such employees who are symptomatic or test positive are entitled to the income protection benefits under the collective agreements. In such cases, employees are clearly suffering from a legitimate illness that prevents them from attending work. The Arbitrator further found that those full-time employees who experienced symptoms or tested positive continue to be absent due to a legitimate illness after their symptoms subside and until they are legally permitted to return to work. In other words, Arbitrator Stout found that such employees are entitled to income protection benefits during the period after their symptoms subside until they are legally permitted to return to work.

However, the Arbitrator concluded that there was no evidence before him that any of the asymptomatic full-time employees are suffering from a legitimate personal illness. Therefore, it was found that the asymptomatic full-time employees who do not test positive or are not tested are not absent due a legitimate illness, but rather absent because they can potentially be ill or might be unwell or unhealthy. The Arbitrator specified there was no suggestion that any employee who is asymptomatic and does not test positive suffers from a “handicap”. It was noted that these employees would normally be at work but for the fact that they may pose a risk to the vulnerable residents and other employees. The Arbitrator found the Homes had rightly applied the precautionary principle by preventing those employees who pose a risk from working in accordance with federal and provincial directions and orders.

With respect to part-time and casual employees, the Arbitrator noted that these employees do not enjoy a disability income plan, and therefore, are not entitled to any income replacement benefits under their respective collective agreement. It was also Arbitrator Stout’s opinion that the collective agreements do not provide part-time and casual employees with any other form of entitlement or compensation for absences due to COVID-19. Arbitrator Stout agreed that any entitlement to compensation for employees other than full-time employees who are symptomatic or test positive, had to be found within the collective agreements or in a statutory entitlement.

 

In Our View

This decision is favourable for employers and will provide guidance for those employers who are still debating whether employees who are quarantined (self-isolating) but who are not themselves ill or exhibiting symptoms of COVID-19 or do not test positive (or do not get tested at all) are entitled to any paid sick leave provided under a collective agreement. The result in this decision turned on the specific collective agreement language. Employers should review their relevant collective agreement provisions or any applicable workplace policy to determine entitlement to compensation when it comes to COVID-19-related absences.

It is also worth noting that Arbitrator Stout found that the Homes were exercising their management rights reasonably and appropriately by preventing those employees who may pose a risk from attending the workplace. Such a rule was found to be reasonable and designed to meet the legitimate purpose and crucial objective of protecting residents, employees and stopping the spread of COVID-19, which the Arbitrator described as a deadly infectious disease. In addressing ONA’s argument that management can only remove employees from the workplace for just cause, again the Arbitrator found the Homes’ conduct entirely reasonable and justified in the context of a global pandemic.

For further information or advice on your rights and obligations as an employer when dealing with COVID-19 and similar issues, please contact J.D. Sharp at 613-940-2739, Vicky Satta at 613-940-2753Porter Heffernan at 613-940-2764André Champagne at 613-940-2735Lynn Harnden at 613-940-2731 or Raquel Chisholm at 613-940-2755.