CASE ALERT: Arbitrators Weigh in on Pandemic Pay Program Eligibility

In April 2020, the government introduced a “temporary pandemic pay program” for essential workers in health care and congregate care settings.  In tandem with this program, the government introduced an emergency order that restricted employers and arbitrators from expanding upon the class of workers that were entitled to temporary pandemic pay under the program ( O Reg 241/20: Special Rules Re Temporary Pandemic Pay).  Since then, we have seen unions and employees grieve the restricted classes of workers eligible for the temporary pandemic pay and these grievances are beginning to be heard (and decisions rendered) in these cases.

CASE #1 – Trillium Health Partners v. CUPE

In Trillium Health Partners v Canadian Union of Public Employees, Local 5180, Arbitrator Randazzo heard two claims for an expansion of that original $4/hour, $250 a month program.

1. Definition of Auxillary Workers:

In the first claim, workers, including mask fitters, PPE coaches, screening team leads, and patient relations officers, claimed pandemic pay, even though their jobs were not specifically on the list of eligible classifications. You may recall that the original list of eligible workers included the following:

  • PSWs including home support workers, home help workers, community support workers, residential support workers, homemakers 
  • Registered nurses 
  • Registered practical nurses 
  • Nurse practitioners 
  • Attendant care workers 
  • Auxiliary staff  including: 
      • Porters 
      • Cooks, food service, food preparation 
      • Custodians, cleaning/maintenance and environmental services staff, sterilization and reprocessing staff 
      • Housekeeping 
      • Laundry 
      • Security, screeners 
      • Stores/supply workers, receivers, department attendants 
      • Hospital ward and unit clerks 
      • Client facing reception/administrative workers, schedulers, administrative staff working in home and community care or community-based mental health and addictions 
      • Community drivers 
      • Community recreational staff/activity coordinator 
  • Developmental services workers 
  • Mental health and addictions workers: counsellors/therapists, case workers and case managers, intake/admissions, peer workers, residential support staff, Indigenous/cultural service workers 
  • Respiratory therapists in hospitals and in the home and community care sector
  • Paramedics
  • Public health and infection prevention and control nurses

In the decision, auxiliary staff (already a defined category with a list of eligible classifications) was considered an umbrella classification intended to capture those employees who provided support or services to patients and staff, recognizing a number of different roles or classifications that fall under such term. The arbitrator expanded the “auxiliary” classification as a person who is helpful and provides support, including (for the purposes of this arbitration): 

    • Attendant care workers 
    • Mask Fitter 
    • PPE Coach 
    • Screening Team Lead 
    • Patient Relations 

The key takeaway for employers is that if you have outstanding grievances related to eligibility for pandemic pay for workers who fell outside the list of specific classifications of workers, consider whether the workers in question could be considered auxiliary staff in the sense that they were supporting or helpful to clients and staff in eligible settings.

2. During Union Leave.

Second, two employees claimed pandemic pay for time they were attending to union business, on the basis that their CBA entitled them to “no loss of earnings”. The Arbitrator rejected this argument. The word “earnings” was negotiated before the pandemic and wouldn’t have been meant to include this program. Further, the union duties that the employees wanted covered didn’t fit into the purpose of the pandemic pay program – compensating front-line employees for riskier work.  Based on this case, it appears that collective agreement language providing for “no loss of earnings” won’t be enough to secure pandemic pay for employees during periods of leave or absence from active front line duties.  However, it does leave open the possibility that that sort of language negotiated after the start of the pandemic pay program could be read to include pandemic pay (since it will be in the parties contemplation).

Case #2 – Ontario’s Teaching Hospitals v PARO

The second decision of note in the last few weeks involves an interest arbitration related to the eligibility of medical residents for the original pandemic pay program.   

In this decisionthe arbitration was convened to resolve an issue between Ontario’s Teaching Hospitals, and the Professional Association of Residents of Ontario (PARO). Paro represents about 5500 medical residents. The single issue was a proposal by PARO that residents be awarded pandemic pay, as they had been exempted from the province’s first pandemic pay program.  

The stated purposes of the program had been to assist frontline staff who were experiencing severe challenges and who were at heightened risk. The omission of residents in light of this purpose was challenged by medical residents working on the frontline. The Teaching Hospitals took the position that only the government had the authority and jurisdiction to determine who received pandemic pay. 

 In its decision, the Arbitrator awarded the PARO proposal to affected individuals, concluding that the proposal made by PARO is not statute-barred and is explicitly authorized by the pandemic pay funding announcement itself. The stated goals of the temporary pandemic pay were to:  

  •  Provide additional support and relief to frontline workers 
  • Encourage staff to continue working and attract prospective employees 
  • Help maintain safe staffing levels and the operation of critical frontline services 

 The Arbitrator found that the goals of the temporary pandemic pay program are completely applicable to Residents, and there was absolutely no rational basis for their exclusion since they were “intimately and integrally on the frontlines”.  

 Key Takeaway 

These case are particularly interesting in light of the prohibition on the expansion of the pandemic pay program in O. Reg 241/20. However, it also signals that arbitrators may (in sympathetic cases that match the purpose of the program) expand eligibility at interest arbitration or even in grievance arbitration for front line workers excluded from the list of eligible employees.

PooranLaw will continue to monitor legal developments related to interpretation of the government’s pandemic pay programs. In the meantime, if you require legal assistance in determining how these new rules apply to you or your organization, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.