In a recent Ontario arbitration decision, Arbitrator Jesin considered the reasonableness of Algoma Steel's policy to require all employees who cross the US border to self-isolate even if they fell under the Federal Quarantine Act regulatory exemptions.
The case involved an employee working at Algoma Steel's Sault Ste. Marie facility. At the outset of the COVID-19 pandemic, and in consultation with Algoma Public Health, Algoma Steel implemented a policy that would require any employee who travelled over the US border to self-isolate for 14 days even if they were otherwise exempt from the self-isolation requirements under the Regulations to the Federal Government's Quarantine Act.
The Grievor, who had been working for Algoma Steel for 3 years, had dual citizenship and lived in Chippewa County in Northern Michigan. He was not married at the time and as a result of a custody order, had his two young children with him on his days off. His children were not able to cross the border. Algoma's policy would require him to take up residence temporarily in Canada if he wanted to continue working and forfeit his access rights during the period of the pandemic.
Algoma argued that the policy requiring self-isolation was reasonable in all of the circumstances given the size of the Company (almost 3000 employees) the infection rates in Northern Michigan (three times that of Algoma District), the fact that it did not violate the collective agreement and the Company's obligations under s.25(2)(h) of the OHSA to take all reasonable precautions for the protection of a worker. Algoma acknowledged its obligations under the OHRC to accommodate on the basis of family status, however, it argued that no accommodation short of undue hardship was available to the grievor in the circumstances.
The Union argued that the policy was unreasonable as applied to the grievor as it violated his right to equal treatment on the basis of family status and the policy was not being applied reasonably since at least one other employee was allowed to work despite their family members crossing the US/Can border for work.
Arbitrator Jesin sided with the Union in finding that Algoma's policy, applied to the Grievor, did not accord with his right to accommodation under the OHRC. The arbitrator found that Algoma should have considered alternate work arrangements or a reassignment to an area in the plant where the Grievor would have less contact with his co-workers. The arbitrator also noted that Algoma's increased sanitizing, social distancing and PPE policies would significantly reduce the risk that the Grievor could expose his co-workers to COVID-19. Finally, the arbitrator considered that it would be reasonable for the parties to place restrictions on the Grievor's travel in Michigan to any COVID "hot spots".
Takeaway for Employers
It goes without saying that the COVID-19 pandemic has presented unprecedented challenges for workplace parties trying to balance individual rights with the safety of the workplace and communities more generally. As we continue to learn more about this virus, employers must have the flexibility to respond to new information and developments that impact the workplace. Arbitrator Jesin's decision is a reminder that as we move through the phases of this pandemic employers cannot lose site of the importance of individual accommodation that can be implemented while still maintaining a safe work environment.
Please contact one of the CCP team members who can assist with the implementation of COVID-19 related policies and help navigate individual accommodation issues arising from this pandemic.
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