In a recent Ontario labour arbitration case, an employee was exempted from an employer’s policy requiring employees to self-isolate due to COVID-19 if they travelled from the United States to Canada. The employee lived in the U.S. and crossed the border every day to work in Ontario.
Employee Unable to Work Due to Employer’s Policy
The employer is situated in the City of Sault Ste. Marie, Ontario, in the District of Algoma. It manufactures steel and steel products. The employer has 2,850 employees at its Sault Ste. Marie site, 2,200 of whom belong to a union.
The unionized employee had been employed by the employer since 2017 as a machinist apprentice. He is a dual Canadian and American citizen and lives in Chippewa County in Northern Michigan on the American side of the border with Canada. During his employment, he had been crossing the border to attend work at the start of his shift and to return home at the end of each shift.
After the onset of the COVID-19 pandemic, the Canadian government enacted an emergency order pursuant to its authority under s. 58 of the federal Quarantine Act. Under the order, individuals who enter Canada from the United States must self-isolate for a period of 14 days. However, regulations enacted under the order exempt certain categories of persons who must cross the border regularly to go to their normal place of employment. The employee fell within the exemption and was therefore not required by the government order to self-isolate if he crossed the border to attend work.
However, the employer implemented a policy that any of its employees who crossed the border must isolate for 14 days before attending work. The employer stated that it implemented the policy on March 16, 2020, in consultation with Algoma Public Health and in due consideration of its obligation under s. 25(2)(h) of the Occupational Health and Safety Act to take every reasonable precaution for the protection for its employees.
This proved problematic for the employee because he lived with his two young children in the United States and the children were not entitled to cross the border to be with him while he was in Canada under a custody agreement. As a result, the employee had to choose between living in Canada to pursue his employment or to continue living in the United States to be with his children. He had chosen to maintain his custody arrangement with his children and had therefore been unable to work since March 17, 2020.
The employer acknowledged that the application of its policy had resulted in a very difficult situation for the employee but that it did not see any alternative to maintaining the health and safety of its employees and the viability of its operation during the pandemic. The employer acknowledged the existence of s. 5(1) of the Ontario Human Rights Code, which guarantees every employee the right to equal treatment in employment without discrimination on the basis of enumerated categories, including family status. However, it asserted that it could not be required to accommodate the employee’s family situation beyond the point of undue hardship and that no accommodation short of undue hardship was available in the circumstances.
The union representing the employee asserted that given the federal regulations exempting the employee from the self-isolation order, the employer was without authority in requiring employees crossing the border to work to self-isolate. The union further argued that the policy was not being applied in a reasonable way. Finally, the union asserted that the policy was unreasonable as the employer had not made sufficient accommodations that would have allowed the employee to work.
Decision: Employee Excused from Employer’s Policy
The arbitrator stated:
“The Covid 19 pandemic presents all of us with extraordinary challenges which are unprecedented. The condition is highly contagious and although the majority of those afflicted with the virus do recover, anyone following the news today is aware that Covid 19 can be life threatening to people of any age and certainly may have long term impact on the health of those afflicted, even when it is not fatal. […]
In this unusual case, the policy has forced [the employee] to make the difficult choice of having access to his two young children or to make a living. In my view it was not reasonable to have forced [the employee] to make this choice without determining whether there are conditions in which [the employee]’s ability to work while living in Chippewa could be accommodated.”
As a result, the arbitrator determined that in order to balance the competing legitimate rights of the employee and the obligations of the employer, the employer must allow the employee to work without requiring him to self-isolate.
However, the arbitrator added that the employer would also be free to assign the employee to work which it deemed necessary to minimize the safety risk and to wear protective equipment and follow other health measures.
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