The grievance in this case challenges the application of the Employer’s policy to deal with the Covid-19 pandemic and its impact on Kyle Gendron. The facts giving rise the grievance are as follows:

The Employer is situated in the City of Sault Ste. Marie, Ontario in the District of Algoma. It is engaged in the manufacture of steel and steel products. Mr. Gendron has been employed by the Employer since 2017 as a machinist apprentice and is presently a third year apprentice. He is a dual Canadian and American citizen and presently lives in Chippewa County in Northern Michigan on the American side of the border with Canada. During his employment, until the events giving rise to this grievance, he has been crossing the border to attend work at the start of his shift and to return home at the end of each shift.

After the onset of the Covid19 pandemic the federal government enacted an emergency order pursuant to its authority under s. 58 of the federal Quarantine Act. Under that order, individuals who enter Canada from the United States must self-isolate themselves for a period of 14 days. However, regulations enacted under the order exempt certain categories of persons who must cross the border regularly to go to their normal place of employment. It is conceded that Mr. Gendron falls within the exemption is therefore not required by the government order to self-isolate if he crosses the border to attend work.

The Employer has determined however, to implement a policy that any of its employees who cross the border must isolate for 14 days before attending work. The Employer says that it implemented this policy on March 16, 2020, in consultation with Algoma Public Health and in due consideration of its obligation under s. 25(2)(h) of the Occupational Health and Safety Act, R.S.O. 1990 c. O. (hereinafter OHSA) to take every reasonable precaution for the protection for its employees. We heard evidence that at least one other employee who resided in the United States has self isolated and is now temporarily residing in Algoma District while his wife still lives in the United States.

The implementation of this policy has been especially problematic for Mr. Gendron, who has two young children, aged 6 and 10. He is not married at the present time. As a result of a custody order he has his children on his days off. His children are not entitled to cross the border to be with him while he is Canada. The policy as administered by the Employer requires Mr. Gendron to take up residence in Canada if he wants to continue to attend work during the pandemic. This has put Mr. Gendron in the unenviable position of having to choose between maintaining access to his children or continuing to work. He cannot do both as long as the Employer’s policy is being applied to him. He has chosen to maintain his custody arrangement with his children and has therefore been unable to work since March 17, 2020.

The rate of Covid infection is much smaller in both Algoma District and Chippewa County than it is on other areas of the United States and even than other areas of Ontario. Indeed, information was presented that as of the first day of hearing there were a total of 6 known cases of Covid 19 in Chippewa County since the outset of the pandemic and 19 in Sault. Ste Marie. After the first day of hearing there was a spike in cases in Chippewa County so that by July 15, 2020, there were a total of 21 cases in Chippewa County and 25 cases in Algoma District. The population of Chippewa County is approximately 40,000 people whereas the population of Algoma District is 1115,000 people – nearly three times the population of Chippewa. It is fair to say therefore that the rate of infection in Chippewa is approximately three times that of Algoma at the time that evidence was presented on this point. It is conceded, however that the situation is fluid and can change on either side of the border quickly. It should be added although the Covid situation is far better in Michigan than it is in other states such as Florida or California, the number of cases overall in Michigan is approximately double that of Ontario although the overall population of Michigan is approximately two thirds that of Ontario.

The Employer has 2850 employees at its Sault Ste. Marie site of which 2200 are in the Union. Not surprisingly, the onset of the pandemic has raised anxieties not only within management but amongst employees as well. The Employer asserts that it has therefore taken every precaution in consultation with the Union and with Algoma Public Health to ensure that its worksite remains “Covid free”. It has implemented special cleaning and sanitizing protocols as well as protocols regarding the use of personal protective equipment. It has implemented special protocols for “outside” people required to attend the plant. For example there are strict protocols for delivery drivers about where they can and cannot be while onsite. Essentially, they are required to stay with their loads and not able to enter the plant.

The Employer notes that even though a machinist may be working in a work station which is distant from other employees there are many high touch areas. For example, there is a shared tool box which employees may have access to. There are also shared common areas where employees may interact such as lunchrooms, meeting rooms and washrooms.

The Employer asserts that as a result of its strict application of its policies, it has thus far remained “Covid free”. It asserts that it has implemented these policies for the protection of its workers as well as its overall business. The Employer acknowledges that the application of its policy has resulted in a very difficult situation for Mr. Gendron but that it does not see any alternative to maintaining the health and safety of its employees and the viability of its operation in this difficult situation.

The Employer asserts that its policy is reasonable in the circumstances and therefore is in conformity with the managements rights provisions of the collective agreement. Counsel for the Employer asserts that in order for the policy to satisfy the test of “reasonableness” the following four questions must be capable of being answered in the affirmative

1. Is the policy contrary to any provision of the collective agreement?

2. Is the policy clear and unequivocal?

3. Was the rule widely disseminated?

4. Was the rule reasonable in the circumstances?

Counsel asserts that the elements of this test as set out above may be drawn from a consideration of the jurisprudence in this area including KVP Ltd., 1965 CanLII 1009 (ON LA), [1965] CarswellOnt 618, AGF Industries, unreported, January 4, 1999 (Haefling), Aclo Compounders Inc., [1980] CarswellOnt 1142 (O’Shea), Denison Mines Ltimited, [1989] unreported, June 14, 1989 (Brunner), and Participating Nursing Homes, unreported, May 26, 2020 (Stout). Counsel submitted that the policy did not violate any provisions of the collective agreement, that it was clear and unequivocal and that it was widely disseminated. He also submitted that it was eminently reasonable given the circumstances arising from the pandemic and given the Employers obligations under OHSA. Counsel acknowledged the existence of s. 5(1) of the Ontario Human Rights Code, R.S.O. 1990 c. H.1 (hereinafter the HRC), which guaranties every employee the right to equal treatment in employment without discrimination on the basis of enumerated categories including family status. He asserted however, that the Employer would not be required to accommodate Mr. Gendron’s family situation beyond the point of undue hardship and that no accommodation short of undue hardship was available in the circumstances.

The Union asserts that given that federal regulations exempt Mr. Gendron from the self isolation order the Employer is without authority in requiring employees crossing the border to work to self isolate. In the case of Mr. Gendron the Union notes that there are contractors doing work in the machine shop and further that junior employees are working in the machinist apprentice position while Mr. Gendron is at home. The Union maintains therefore that the Employer is in violation of the layoff and seniority provisions of the collective agreement as well as the contracting out restrictions.

The Union asserts that the policy is not being applied in a reasonable way. In that regard it notes that at least one employee continues to work while a member of his household crosses the border regularly to work in the United States. The Union asserts that that employee should be considered in the same risk category as Mr. Gendron and that Mr. Gendron should therefore be allowed to work while living in Chippewa. Finally, the Union asserts that the policy is unreasonable as the Employer did not sufficiently accommodations which could have allowed Mr. Gendron to work. In that regard the Union asserts that Mr. Gendron could be assigned to work nights during which there are very few people working in the shops. The Union also asserts that Mr. Gendron could be required to work in certain isolated situations, or to wear a mask while working.

The Covid 19 pandemic presents all of us with extraordinary challenges which are unprecedented. The condition is highly contagious and although the majority of those afflicted with the virus do recover, anyone following the news today is aware that Covid 19 can be life threatening to people of any age and certainly may have long term impact on the health of those afflicted, even when it is not fatal.

It is also well known, that although Northern Michigan in general and Chippewa in particular, is not suffering from Covid to the same extent as much of the United States, most regions of the US are struggling with the virus to the extent that the United States in general has among the highest infection rates in the world. In these circumstances, it is eminently reasonable for Employer to take necessary precautions to ensure the safety of all employees. Indeed, as counsel pointed out, it is the Employer’s duty under OHSA to take such precautions as may be necessary to ensure the safety of all employees.

In my view the layoff and contracting out provisions are of no assistance to the issue at hand. The Employer has establish an emergency pre-condition for employees to work at its facility during the pandemic. That precondition is essentially requires that employees remain in Canada while working in order to maintain regular employment. Mr. Gendron is unable to meet that pre-condition. If Mr. Gendron cannot meet a reasonably established pre-condition, reasonably applied, there can be no violation of the collective agreement by having junior employees or even contractors performing the work that Mr. Gendron would otherwise perform.

Still, although it would have been generally reasonable and in compliance with the collective agreement to establish the general policy there are circumstances in which it might be unreasonable to apply the policy without accommodation. In this unusual case, the policy has forced the Mr. Gendron to make the difficult choice of having access to his two young children or to make a living. In my view it was not reasonable to have forced Mr. Gendron to make this choice without determining whether there are conditions in which Mr. Gendron’s ability to work while living in Chippewa could be accommodated. Indeed, in my view s. 5(1) of the HRC requires the Employer to consider accommodation in these circumstances. In that regard I would note that although there has recently been a spike in Covid in Chippewa it has not been a relatively high Covid area. I would also note that there are situations in which the Mr. Gendron may be assigned to work distant from most other employees. I appreciate that there are some shared touch areas and some shared congregation areas, but the Employer has made it clear that it has implemented increased sanitizing and PPE protocols to deal with these areas. I am also of the view that any accommodation of the Mr. Gendron could include special conditions such as increased wearing of masks or special social distancing protocols to be in place as long as he continues to reside in the United States. In addition it may be appropriate for the Employer to have required Mr. Gendron to undergo Covid testing at regular intervals while in Ontario. Finally it may also be appropriate for Mr. Gendon to be restricted from travel to designated Covid “hot spots” in the United States while the policy is in place. Any or all of these accommodations could be considered.

Having regard to the foregoing, it is my determination that in order to balance the competing legitimate rights of Mr. Gendron and the obligations of the Employer that the Employer be directed to allow Mr. Gendron to work without requiring him to self isolate. However, the Employer would be free to assign Mr. Gendron to work and to shifts which it deems necessary to minimize the safety risk. Furthermore, the Employer may require Mr. Gendron to wear such PPE and to take such social distancing and sanitizing protocols which it deems reasonable in the circumstances. In addition, once Mr. Gendron has returned to work the Employer could consider, in consultation with the Union, other terms that Mr. Gendron would have to follow such as those regarding testing and travel discussed above. I would remain seized to deal with any issues which may arise regarding the reasonableness of any terms or protocols which may be imposed.

In addition, both parties have recognized that the situation regarding Covid is fluid. Circumstances may deteriorate or improve on either side of the border and such changing circumstances may justify a revision of this Order. The parties have agreed that whatever my ultimate Order, I should remain seized to deal with any request to make a change in this order resulting from a change in circumstances regarding Covid.

Finally, the Union requested an Order for back pay. In this regard, I reiterate that the situation regarding Covid is and has been fluid. I would note the knowledge of public health officials regarding Covid and how it is transmitted, has evolved and continues to evolve. My award is in part based on the state of affairs as they exist now. It is not yet clear to me to what extent damages may be appropriate for a policy that was implemented in March. I am therefore remitting that matter of compensation back to the parties for resolution and remain seized if the parties are unable to agree.

Read the labor arbitration awards case attached which is in favor of the union and summarize a report on what you find fair/unfair in the settlements. Additionally, discuss why you think this.