A global pandemic does not discharge employers from their duty to accommodate.

COVID-19 has left no area of law untouched, and employment law is no exception. United Steel involved an employee of a steel manufacturing plant in Sault Ste. Marie impacted by the mandatory quarantine order. The grievor is a dual citizen of Canada and the United States, and a single father to two children, both living in the United States. Although the grievor was exempt from the federally mandated self-isolation period as an essential worker, the employer implemented its own 14 day self-isolation policy independent of the one implemented under the Quarantine Act. The employer’s policy was implemented under the authority of the Ontario Health and Safety Act, which stipulates that employers must take every reasonable precaution to protect their employees.

The grievor, therefore, had to choose between either continuing to attend work or maintaining access to his children during a global pandemic. The Ontario arbitrator weighed the grievor’s argument that the policy was unreasonable and violated his right to equal treatment on the basis of family status against the employer’s argument that the policy was reasonable in the circumstances, given the high infection rates in the United States.

The arbitrator determined that, on the evidence, the employer’s COVID-19 policy was arbitrarily applied. The evidence revealed that some employees had spouses who worked in the United States but otherwise lived in the same home, and these employees were not subject to the self-isolation requirement despite having the same exposure risk. The arbitrator found that the employer had failed to reasonably accommodate the grievor, and could have found alternative work arrangements to limit contact with other co-workers. The arbitrator also determined that as part of the agreement to allow the grievor to continue to work without isolating, it would be reasonable to limit the grievor from travelling within the United States to any COVID-19 “hot spots”. Facing an unprecedented modern health crisis, the arbitrator in this decision was able to find a balance between individual employee family-status rights and the health and safety of the workplace.