COVID-19: Recent Arbitration Decision Sheds Light on Sick Pay Entitlements During Self-Isolation

The issue of pay during periods of self-isolation has prompted numerous grievances in unionized workplaces across the country.   A recent Ontario Arbitral decision sheds some light on employee rights and employer obligations related to self-isolation in response to COVID-19.

In Participating Nursing Homes v. Ontario Nurses Association, 2020 CanLII 36663, the Ontario Nurses Association (the “ONA”) argued that employees who were absent from work due to COVID-19 self-isolation but were asymptomatic and had not tested positive for COVID-19 should be “deemed sick” and entitled to sick pay under the parties’ collective agreement.

Arbitrator John Stout disagreed with the ONA and held that there is no right to be paid when an employee is not working unless legislation, contract, or a collective agreement creates that right. Here, the collective agreement only provided sick pay to employees with a “personal illness or injury”. It was clear to the arbitrator that employees who were symptomatic or tested positive would qualify as having a personal illness or injury and be entitled to the benefits until they return to work (even if their symptoms subsequently subside).  On the other hand, asymptomatic employees who had not tested positive but must self-isolate were found to not have an illness or injury, and not be entitled to sick pay as a result.

While this decision is particular to its circumstances and the language of the collective agreement in question, this case does support the position that employees required to be off work for purposes that are not the subject of a statutory or contractual paid leave will not have a claim to pay.   This is particularly important given concerns related to the broad range of triggers for directions to self-isolate under the province’s self-assessment tool.  Simply put, an overly broad eligibility for sick leave in the context of asymptomatic self-isolation could result in over-reporting of circumstances triggering self-isolation.

While this decision avoids helps to avoid abuse of sick-leave, at the same time employers wishing to reduce the risk of infection must also keep in mind that employee fear of lost wages may encourage under reporting of risk factors.  Policies and supports for employees that balance sick leave costs with the need for honest reporting of risks are imperative for employers.

As always, PooranLaw will continue to monitor applicable arbitral jurisprudence and provide updates here.  In the meantime, if you require legal assistance, 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.