COVID Case Law Update: Two Recent Decisions of Note in the Long-Term Care Sector
Date: January 6, 2021
In this HR HealthCheck, we discuss two recently released arbitral decisions involving retirement and long-term care home providers whose responses to the COVID-19 pandemic were challenged by their unions. The first case deals with a mandatory testing policy. The second case considers an employer’s right to cancel an employee’s leave of absence in order to respond to the pandemic. These cases will be of particular interest to employers and human resource professionals in the long-term care sector.
In Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada the union filed a group grievance on behalf of its members working at a retirement home in Woodstock, Ontario. The grievance challenged the reasonableness of a policy imposed by the employer that required all workers to be tested for COVID-19 every two weeks. The union argued mandatory testing was an undue invasion of employee privacy. The employer took the position that the policy was appropriate, given its aim of preventing the spread of COVID in the home.
Arbitrator Dana Randall acknowledged that the union’s reliance on the line of drug and alcohol testing cases made for a reasonable starting point in the analysis, but he found there is a marked difference between controlling the COVID-19 infection and monitoring for intoxicants. Most importantly, he noted that the weight to be given to the need for COVID testing as compared with drug and alcohol testing was not the same.
The Arbitrator weighed the intrusiveness of the COVID test against the problem it sought to address (particularly given the vulnerable population in the home and in the context of public health and ministry guidelines) and concluded the employer’s policy was a reasonable one. He stated:
In my view, when one weighs the intrusiveness of the test: a swab up your nose every fourteen days, against the problem to be addressed – preventing the spread of COVID in the Home, the policy is a reasonable one. While the Home had not had an outbreak, I agree entirely with the Employer that, given the seriousness of an outbreak, waiting to act until that happens, is not a reasonable option.
The grievance was dismissed.
In Ontario Nurses’ Association v The Corporation of the County of Essex (Sun Parlour Home for Senior Citizens) Arbitrator Gedalof considered O. Reg. 77/20, Work Deployment Measures In Long-Term Care Homes (the Regulation), a regulation enacted under the Emergency Management and Civil Protection Act.
In June 2020,a long-term care home provider advised one of its employees – a nurse on a union-related leave of absence – that she was required to return to work on a full time basis so that the home could meet its operational demands during the COVID-19 pandemic. As authority for cancelling the leave, the employer relied on the Regulation.
The Ontario Nurses’ Association (ONA) grieved the employer’s cancellation of its member’s leave of absence. At issue was the discrete question of whether the exercise of the enumerated measures set out in section 3 of the Regulation is subject to the “reasonably necessary” standard in section 2 of the Regulation. The sections in question state:
- Health service providers shall and are authorized to take, with respect to work deployment and staffing, any reasonably necessary measure to respond to, prevent and alleviate the outbreak of the coronavirus (COVID-19) (the “Virus”) for residents.
- Without limiting the generality of section 2 of this Schedule, and despite any other statute, regulation, order, policy, arrangement or agreement, including a collective agreement, health service providers shall and are authorized to do the following:
i. Identify staffing priorities and develop, modify and implement redeployment plans, including the following: […]
D. Deferring or cancelling vacations, absences or other leaves, regardless of whether such vacations, absences or leaves are established by statute, regulation, agreement or otherwise.
The employer argued that section 3 is not subject to the “reasonably necessary” requirement; ONA took the opposite position.
Arbitrator Gedalof applied the general principles of statutory interpretation to the language used in the Regulation and concluded that the measures listed in section 3 may be adopted so long as they are reasonably necessary to prevent, respond to, or alleviate an outbreak of COVID. The Arbitrator rejected the employer’s position that section 3 of the Regulation amounted to an “unfettered right” to ignore collective bargaining obligations.
Both cases highlight the impact the COVID-19 pandemic has had on the retirement and long-term care home sector, particularly as it relates to the challenges providers face in ensuring they adopt measures reasonable in the circumstances. As these decisions also emphasize, employers need to be cognizant that actions aimed at preventing or responding to an outbreak strike the appropriate balance between management rights, employee privacy rights, and the obligations set out in the collective agreement.
If you have any questions related to these decisions and their impact on your organization, please contact your regular Hicks Morley lawyer.
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