Sick Pay For Self-Isolating Canadian Employees: Is It Required?
The COVID-19 pandemic has raised a host of novel issues which employers have had to contend with. One of the more challenging questions is whether or not an employer is required to continue to pay employees who are forced to self-isolate and are thus prevented from attending at work due to what are arguably circumstances beyond their control.
A recent decision by one of Ontario’s leading arbitrators provides some useful guidance on point, and helps draw a distinction between circumstances which are and are not compensable.
In Ontario Nurses’ Association (the “Union”)– and – Humber River Hospital (the “Hospital”), arbitrator Norm Jesin was tasked with interpreting the provisions of a collective agreement and applicable legislation in order to determine whether or not employees were owed compensation based on being unavailable to work. The decision focussed on the right to be paid in two scenarios:
Employees who have symptoms and test positive for COVID-19; and
Employees who are asymptomatic for COVID-19, do not test positive, and are absent from work and self-isolating due to applicable employer or government orders, including as a result of travel, exposure to COVID-19 (in or out of the workplace), and in accordance with public health directives.
The first scenario was dealt with in short order by the arbitrator: an employee with COVID-19 symptoms is properly considered to be sick, and the specific collective agreement between the Union and the Hospital included provisions for a short-term sick leave plan for full-time employees. Subject to the relevant eligibility criteria, relevant employees could collect sick pay if absent from work due to a “total disability”. Based on the relevant language and the practice of the employer, having COVID-19 constitutes a disability (even if temporary) for these purposes. As a result, eligible employees who tested positive for COVID-19 or had symptoms (and were thus absent due to illness) would be entitled to sick pay. This reasoning is likely consistent with most employers who have sick leave plans have been doing during the pandemic – those who are “actually sick” are allowed to access available sick pay.
The second scenario in the Humber River case involves more contentious cases where the employee is “required to not be at work” while also being “not actually sick”. The Employer’s position at arbitration was that any employee who isolates as a result of COVID-19 exposure or because of travel-based restrictions cannot be classified as being “absent due to illness”. As a result, the usual pre-condition associated with being allowed to access sick pay do not apply. The Union’s argument was that any employee required to self-isolate should be eligible for available sick pack, regarding of whether or not the specific employee had a positive test. The Union essentially asked that the “illness” in issue be interpreted to include illnesses of persons other than the employee.
The arbitrator review applicable jurisprudence and dismissed the grievance with respect to the second scenario. In particular, arbitrator Jesin found that sick pay is only available and required to be paid to employees who are ill. Cases where an employee is required to self-isolate do not make that employee someone who is “ill”. Thus an asymptomatic person required to self-isolate may have a proper reason to be absent from work, but that does not trigger a corresponding employer obligation to pay them sick pay.
Takeaway for Employers
The specific outcome in this case was party a function of the wording in the relevant collective agreement. The decision does, however, also likely offer some more general guidance about how to characterize (and thus pay) people who are absent for work due to legitimate COVID-19-related reasons. The mere fact that an employee cannot attend work does not necessarily mean that the employer has an obligation to pay the employee. Instead, the specific employer policy, plan wording or collective agreement provisions will need to be reviewed, all while given proper consideration to any applicable legislation. The decision provides a helpful and clear message that payments to employees for being “sick” or “ill” are not required in cases where the employee (on their own admission) is absent for different reasons.