Canadian Employment Law Today

October 21, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2020 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You Make the Call involves an employer's COVID-19 isolation policy and the impact it had on one of its workers. Kyle Gendron was a third-year machinist apprentice with Algoma Steel, a steel manu - facturer in Sault Ste. Marie, Ont. Gendron was a dual citizen of Canada and the U.S. and lived in Michigan, crossing the border every day in order to work at Algoma's facility. When the COVID-19 pandemic hit, the Canadian government enacted an emergency order requiring people who entered Canada to isolate for 14 days. The order included an exemption for certain people who have to cross the border regularly to go to work and Gendron fell within the exemption. However, on March 16, Algoma imple - mented its own policy — after consulting with the regional public health authority and in recognition of its obligation under the On- tario Occupational Health and Safety Act to take every reasonable precaution for the pro- tection of its employees — that required any of its employees who cross the border to iso- late for 14 days before coming to work. The policy not only made it difficult for Gendron to work, but it also caused other problems for him. Another Algoma employee who lived in the U.S isolated for 14 days and then temporarily moved to the Canadian side of the border while his wife remained in the U.S., but this wasn't ideal for Gendron as he had custody of his two young children on his days off. The children lived in the U.S. and weren't entitled to cross the border, so if he moved to Canada during the pandemic, he wouldn't be able to see his children. Gendron decided to remain in the U.S. in order to maintain his custody arrangement and, therefore, was unable to go to work with Algoma after March 16. The union filed a grievance against Algoma's policy, claiming it had an unfair effect on Gendron and he should be allowed to continue working at Al - goma's facility while living in the U.S. It also argued that Algoma breached the layoff and seniority provisions of the collective agree- ment by preventing Gendron from working and allowing contractors and junior employ- ees to do his work. YOU MAKE THE CALL Should Gendron be allowed to work at Algoma's facility? OR Should he be kept out of the workplace? IF YOU SAID Gendron should be allowed to come to work while continuing to live in the U.S., you're right. The arbitrator noted that the evidence showed that lightly populated North- ern Michigan wasn't suffering from COVID-19 as much as other areas of the U.S., but that country in general had among the highest in- fection rates in the world. As a result, Algoma's policy was reasonable to ensure the safety of its employees. The arbitrator found that the layoff and con- tracting out provisions of the collective agree- ment were irrelevant since the policy set out an emergency pre-condition for employees to work at its facility. The company only had contractors and junior employees performing Gendron's work because Gendron didn't meet that pre-condition, said the arbitrator. However, the arbitrator also found that the policy forced Gendron into an unusual and dif - ficult situation — having to decide between hav- ing access to his two young children and making a living. It wasn't reasonable for Algoma to force Gendron to make this choice without investigat- ing any possible alternatives to accommodate Gendron's situation, the arbitrator said, sug- gesting possible scenarios where Gendron could work distanced from other employees while us- ing increased sanitization and personal protec- tive equipment, Gendron following distancing and mask-wearing protocols while in the U.S., travel restrictions and regular COVID-19 testing for Gendron while in Ontario. The arbitrator determined that Algoma should allow Gendron to work at its facil- ity while residing in the U.S. without the re- quirement to isolate, noting that this was in accordance with the federal government's emergency order exceptions. The arbitrator added that "in order to balance the compet- ing legitimate rights of Mr. Gendron and the obligations of the employer," Algoma was free to require Gendron to follow any proto- cols it deemed necessary to maintain safety. In addition, since the situation regarding COVID-19 continued to evolve, either party could request consideration for a change in the decision. For more information, see: • USW, Local 2251 and Algoma Steel Inc. (Gen - dron), Re, 2020 CarswellOnt 10068 (Ont. Arb.). An Ontario employer's COVID-19 quandary The employer required any workers who crossed the border to isolate for 14 days before coming to work. The federal government's emergency order had exceptions for certain workers.

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