In a recent decision of significant importance to the hospital sector, Arbitrator William Kaplan held that a nurse will be entitled to communicable disease leave with pay only where they are required by hospital policy, direction of a public health authority or by law to quarantine/isolate. The paid leave does not apply to circumstances where a nurse may have a communicable disease and is required by a hospital to remain off work until they are well.
In North York General Hospital v. ONA, Arbitrator Kaplan considered the application of Article 6.05(f) of the central agreement between the Ontario Nurses' Association and Participating Hospitals. This provision, awarded in the most recent round of negotiations, states:
Effective July 20, 2023, employees who are absent from work due to a communicable disease and required to quarantine or isolate due to:
i) The employer's policy, and/or
ii) Operation of law and/or
iii) Direction of public health officials,
shall be entitled to salary continuation for the duration of the quarantine.
The grievor, a nurse with North York General Hospital (Hospital), tested positive for COVID-19 on July 18, 2023. The Hospital's online portal advised that she was "NOT CLEARED to return to work at this time" and the grievor was subsequently advised by the Hospital's occupational health department that she should complete the Hospital's online clearance form once she was symptom-free and would subsequently be returned to work. Following her return, the grievor requested quarantine/isolation pay in accordance with Article 6.05(f) for the period of absence. The grievance was filed after this request was denied.
ONA argued that, at the time the grievor contracted COVID-19, while there was no public health order requiring persons with COVID-19 to self-isolate, Toronto Public Health's online material instructed someone with COVID-19 to "stay home & self-isolate." Further, the Hospital's direction to stay home constituted a "policy" to quarantine/isolate. As a result of both or either of these directives, the grievor was entitled to the paid leave.
The Hospital asserted that, while the grievor had a communicable disease, she had not been required to isolate or quarantine by the Hospital, public health or by law. The Hospital asserted that requiring a nurse to remain off of work until their symptoms improve is not a requirement to isolate/quarantine and asked the for grievance to be dismissed.
Arbitrator Kaplan agreed with the Hospital's position and dismissed the grievance. While there was no dispute the grievor had a communicable disease, the "plain and ordinary meaning" of Article 6.05(f) entitled a nurse to pay only if they were required to quarantine/isolate in one of the three prescribed situations.
In the present case:
... the grievor was not required by the Hospital's policy to quarantine/isolate. The grievor was instructed to stay at home until her symptoms abated, which she did. Instructing a sick person to stay at home until they get better is not tantamount to requiring them to quarantine/isolate. (emphasis added)
Key Takeaways
This is the first decision to interpret Article 6.05(f) and will be of significant importance to hospitals who may have outstanding grievances related to similar situations. It provides clear guidance to hospital employers about when a nurse will (and will not) be entitled to paid leave related to a communicable disease.
North York General Hospital was represented by Hicks Morley's Scott Williams.
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