In a recent arbitration decision, Arbitrator Richard Coleman dismissed a grievance from an employee who claimed an entitlement to be paid by his employer during a 14-day period of self-quarantine due to possible exposure to someone with a confirmed case of COVID-19. (See Toronto Terminals Railway West Division v Unifor Local 101-R, 2020 CanLII 99175 (ON LA).)
The Facts
In this case, the Grievor’s self-quarantine took place on the recommendation of the Fraser Health authority and was not in dispute. The issue, was whether or not that absence should be considered with or without pay. The Company’s position was that the grievor was entitled to short term sick leave (STD) and CERB from the Federal Government, but no more.
The Company’s policy was as follows:
Self-Isolation Period
Employees are required to comply with the self-isolation period recommended by the CDC, as may be updated from time to time. Currently, the CDC recommends a minimum 14-day self-isolation period upon returning from a Level 3 zone. Employees may elect to take vacation time during this self-isolation period. Otherwise, this administrative leave will be unpaid.
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TTR takes our employees’ health & safety very seriously, and we are doing what we can to provide the necessary equipment, as well as changing some procedures to help alleviate your concerns. It is important to note that at both locations, there are latex gloves, hand sanitizers, cleaning supplies, running water and masks for those people who want them.
I also want to let all employees know that should you attend a funeral for your immediate family which also requires airplane travel, TTR will pay for your 14 days of isolation upon your return to your household.
The Company compensated employees eligible for the exceptional wage continuation where required in relation to a funeral for an immediate family member. The union grieved that other employees, who did not meet this exception, were not eligible for wage continuation.
Decision:
In denying the grievance, Arbitrator Coleman stated that the fact that the Company implemented a separate policy for employees quarantining subsequent to having traveled to a funeral of an immediate family member, does not create a contractual right to the same compensation for those who have not travelled to attend such a funeral, and whose self isolation arises from different circumstances. The circumstances are indeed, quite different. The exemption from the main policy set different criteria and incorporated different considerations, including elements of compassion and anticipated mandatory isolation even without exposure to COVID.
This case is a helpful reminder of the long established law, that the mere payment of an extra-contractual benefit to one employee, does not establish a contractual right, without more, for example: in the nature of proof of some sort of prejudice, or bad faith/lack of bona fides, none of which is present here.
