Covid-19: Case Law Update on Remote Work Reimbursement Obligations

In a recent Ontario Labour Arbitration decision, CUPE Local 4400 grieved the Toronto District School Board’s policy decisions related to reimbursement for employee costs associated with remote work arrangements triggered by the pandemic.    In Toronto District School Board v CUPE Local 4400, 2021 CanLII 27922 (ON LA), the arbitrator was asked to decide whether the Board violated the CBA , the ESA, or has been unjustly enriched by “passing on the costs” of remote learning to its employees, or has it reasonably exercised its management rights.

The Facts:

This matter consists of three policy grievances and three group grievances, all arising from the transition for a large number of School Board employees to working from home. The Union grieved that as a result of this transition, its members incurred a variety of out of pocket expenses that the Board ought to be required to reimburse. These costs ranged from office supplies and furniture to technology such as laptops, tablets and printers, to increased telephone, internet and utility expenses, to the cost of maintaining personal space from which to work. According to the Union, the Board’s failure to reimburse these costs was an unlawful restriction on its members compensation, an unreasonable and arbitrary exercise of management rights and was inconsistent with the collective agreement. The Union argued that the Board has been unjustly enriched by passing on its operating expenses to employees and violates employment standards.

The Decision:

The Arbitrator dismissed these policy grievances and held that the School Board was required to exercise its management rights in a manner that was not arbitrary, discriminatory or in bad faith – by implementing a reimbursement policy it  met that standard. Through the implementation of its policy, the Board did not simply reach into its employees’ metaphorical pockets and commandeer their wages, rather employees were provided with an opportunity to seek approval for expenditures prior to incurring them, and to explore with the Board possible alternatives and the impact those alternatives would have on their ability to carry out the work they were being asked to perform and the implications of any failure to provide resources for the Board, its employees and its students.   The Board held that, in the unprecedented circumstances of the pandemic, this approach was not unreasonable, nor was the policy applied in an unreasonable manner. In all the circumstances, the arbitrator held that the Board had reasonably exercised its management rights.

Takeaways:

This decision demonstrates that employers do have the right to require unionized employees to work from home and to impose unilateral policies in the face of the unprecedented circumstances of the global pandemic to address how remote work will function, including in relation to the addressing the costs of remote work.  We strongly encourage employers to develop policies to address these issues and to implement them consistently in order to ensure and preserve management rights in this regard.