This edition of the newsletter focuses on decisions related to the protection of patients and staff from both influenza and Covid-19.

A. Featured Cases: Two very recent decisions, between the same parties, relied on the “Precautionary Principle” which had been incorporated into Ontario legislation. That principle empowers the Chief Medical Officer of Health to issue health care directives intended to protect the general population even though it cannot be established, with scientific accuracy, that there is a cause and effect relationship between an activity and its potential harm.

The initial decision essentially encompassed an arbitral order that compelled nursing homes to implement practices and procedures intended to protect their staff and residents from the spread of the COVID-19 virus, while the second considered whether employees who were impacted by COVID were entitled to wage loss benefits.    [Click here]

B. Other Decisions of General Interest

1. An arbitrator set aside an employer’s policy that required health care workers to wear a surgical or procedural mask in patient areas where the health care worker had not been vaccinated for influenza. [Click here]

2. An employer was denied an adjournment of a scheduled arbitration despite the fact that the employer was having to focus its resources on the COVID19 pandemic. The arbitrator directed that the hearing proceed by way of video conference.   [Click here]

The initial decision, rendered on May 4, 2020 (i.e. Can LII 32055), focused on health and safety measures to be adopted to deal with the pandemic, while the second decision, rendered on May 26, 2020, considered whether nurses who were absent from work due to COVID-19, were to be deemed to be sick or should be considered to be on a paid leave of absence from the workplace.

The Initial Decision of May 4, 2020

The initial decision dealt with the Union’s assertions that the Homes had breached the “duty of care” that they owed to their employees, including having failed to take adequate measures to ensure the safety of RNs and health care professionals, having failed to provide adequate personal protective equipment, having failed to permit employees to self-isolate where merited, having failed to follow the “precautionary principle” and having failed to take “every precaution reasonable in the circumstances arising as a result of the extra-ordinary threat posed by the COVID-19 pandemic”.

This initial decision considered collective agreement provisions, emergency legislation that had been introduced by the Province of Ontario, other statutory health and safety provisions, and directives issued by the Chief Medical Officer of Health for Ontario. It also relied on the “Precautionary Principle” which had been adopted by Ontario following the SARS outbreak in 2003. In a Commission of Inquiry Report authored by Mr Justice Campbell, he made the important recommendation that the precautionary principle was to be put into action where health and safety are threatened even if it cannot be established with scientific certainty that there is a cause and effect relationship between the activity and the harm.

The Precautionary Principle was subsequently incorporated into section 77.7(2) of the Ontario Health Protection and Promotion Act:

77.1 (1) Where the Chief Medical Officer of Health is of the opinion that there exists or may exist an immediate threat to the health of persons anywhere in Ontario, he or she may issue a directive to any health care provider or health care entity respecting cautions and procedures to be followed to protect the health of persons anywhere in Ontario.

77.1 (2) In issuing a directive under subsection (1), the Chief Medical Officer of Health shall consider the precautionary principle where,

(a) in the opinion of the Chief Medical Officer of Health there exists or may exist an outbreak of an infectious or communicable disease; and

(b) the proposed directive relates to worker health and safety in the use of any protective clothing, equipment or device …

77.1 (3) A health care provider or health care entity that is served with a directive under subsection (1) shall comply with it …

On March 17, 2020, the Province of Ontario declared a province-wide state of emergency pursuant to s. 7.01(1) of the Emergency Management and Civil Protection Act (the “EMPCA”).  Schedule 3 of Regulation 82/20 (2), which is an Order under s. 7.02 (4) of the EMPCA, provides that Long Term Care Homes, as an essential business, shall do the following:

1(1) The person responsible for a place of business that is open shall ensure that the business operates in accordance with all applicable laws, including the Occupational Health and Safety Act and the regulations made under it.

1(2) The person responsible for a place of business that is open shall operate the business in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting.

Following three days of mediation/arbitration, arbitrator Stout issued an award that he characterized as providing a “path forward in a more positive way so that the parties can work jointly in their struggle to combat this terrible disease and protect our valuable healthcare workers and the Homes’ valuable residents”.

The award articulated the matters on which the parties agreed. These included the need to abide by directions issued by the Chief Medical Officer of Health, the full sharing of information concerning the purchase and the continuing status of stockpiles of personal protective equipment and fit testing regarding such equipment, the provision of immediate training on issues related to infection control, physical distancing, and the proper use of PPE, the enforcement of physical distancing requirements and the adoption of enhanced sanitation procedures. The Homes were to adopt a vigilant infectious disease surveillance program that was to include appropriate procedures to be adopted by the Joint Health and Safety Committees.

The parties agreed that staff and residents would continue to be screened and assessed twice daily. It was also agreed that the Homes would advise staff of Residents who tested positive so that reasonable and proper safety precautions could be put in place

It was further agreed that employees who tested positive would not work until they received two consecutive negative specimens at least 24 hours apart or until they could return to work 14 days after symptom onset if they were symptom free, whichever was earliest.

The arbitrator also ordered that the Homes were to provide the nurses with access to fitted N95 respirators and other appropriate PPE as determined by a nurse at the point of care as being appropriate in the circumstances. The order made it clear that nurses were “not to be impeded in their reasonable, good faith professional assessment at point of care as to what constitutes appropriate PPE.”

The Homes were also ordered to implement administrative controls, including “isolating and cohorting residents and staff during the Covid-19 crisis and any subsequent waves” in an effort to protect residents and staff from the spread of the virus.

The arbitrator retained jurisdiction to address any issues of contention.

The Decision of May 26, 2020 Regarding Entitlement to Paid Sick Leave Benefits

The parties had agreed to have arbitrator Stout consider whether full time, part time and casual employees were entitled to be paid where the employee was absent from work due to COVID-19. The following categories were advanced for the arbitrator’s determination:

1. where the employee was symptomatic or tested positive;

2. where the employee was asymptomatic and did not test positive or was never tested, and was absent from work due to:

            (a) travel;

            (b) exposure;

            (c) public health or government guidance or direction;

            (d) pursuant to the award of May 4, 2020 between the parties; or

            (e) instruction from the employer to remain off work.

It was the Union’s position that all nurses who self-isolated due to COVID-19 should either be deemed to be sick or should be on a paid leave of absence from their workplace. The Homes countered that an absence due to an infectious disease precaution did not entitle an employee to sick pay benefits; and that only those employees who exhibited symptoms or tested positive were truly ill and entitled to sick pay.

Arbitrator Stout noted that the collective agreements contained an “Infectious Diseases” provision that dealt with the obligations of the parties to arrest the spread of infectious disease in the nursing homes, with such obligation to be carried out primarily under the auspices of their Joint Health and Safety Committees.

The disability income protection plan that was contained in the collective agreements provided a benefit for full-time employees, but there was no such benefit for part-time or casual employees.

The collective agreements also contained a specific influenza vaccine provision that, with limited exceptions, required employees to be vaccinated annually or take antiviral medication for influenza. Those who refused were to be placed on an unpaid leave of absence during any influenza outbreak in the home until such time as the employee had been cleared by public health or the employer to return to the work environment.

The parties were in agreement that section 50.1 of the Employment Standards Act applied to all employees and that all were entitled to an unpaid leave and to have their benefits maintained in accordance with section 51 of that legislation. Arbitrator Stout framed the issue in this case as follows:

The real dispute is whether any employees who are absent due to COVID-19 are entitled to any other form of compensation or inome replacement benefits.

The arbitrator observed that there had been no assertion that any of the nurses who were self-isolating ought to have been at work.

Arbitrator Stout began his analysis by stating that

It is well accepted that employees are not entitled to be paid if they do not attend work. Any payment for an absence must be found in legislation or the collective agreement … In this case the right to compensation must be found within the four corners of the Collective Agreements.

While the Federal Government has provided some financial assistance, neither they nor the Ontario Government have mandated that employers pay employees for not coming to work when they are required to self-isolate.

The Collective Agreements provide income protection benefits to full-time employees who are absent from work due to “legitimate personal illness or injury, which is not compensable under the Workplace Safety and Insurance Act.”

The arbitrator went on to state that there could be no doubt that:

full-time employees who are symptomatic or test positive are entitled to the income protection benefits [set forth in the collective agreements]. In such cases, it is clear that full-time employees who present with symptoms or test positive are suffering from a legitimate illness that prevents them from attending work.

Moreover, those:

full-time employees who experienced symptoms or tested positive continue to be absent due to a legitimate illness  after their symptoms subside and until they are legally permitted to return to work. Therefore such employees are entitled to income protection benefits during the period after their symptoms subside until they are legally permitted to return to work …

The situation was however different for part-time and casual employees:

Part-time and casual employees do not enjoy a disability income plan. Therefore, they are not entitled to any income replacement benefits under the Collective Agreements. It is also my opinion that the Collective Agreements do not provide part-time and casual employees with any other form of entitlement or compensation for absences due to COVID-19 …

Arbitrator Stout cited with approval a 2007 decision dealing with the SARS crisis. [see Rouge Valley Health System and ONA, 2007 CarswellONT 11594 (Davie)]. There, arbitrator Davie concluded that the Union would have to achieve a change to the language of the collective agreement or a statutory amendment in order to extend coverage to other than full-time employees. Arbitrator Stout agreed, stating that part-time and casual employees as well as others who were required to self-isolate, were caught “in a very unfortunate situation”, and while they suffered financial hardship, they were not alone, in that “many others have suffered financial hardship as a result of the COVID-19 pandemic.”

B. Other Decisions of General Interest

1. An arbitrator set aside an employer’s policy that required health care workers to wear a surgical or procedural mask in patient areas where the health care worker had not been vaccinated for influenza.

In St. Michael's Hospital, 2018 CanLII 82519 (ON LA) (Kaplan), the Union challenged the reasonableness of the employer’s “Vaccinate or Mask” policy that had been implemented during the prior flu season. The policy provided that health care workers, including nurses, who had not received the annual influenza vaccine, were required to wear a surgical or procedural mask, during all or most of the flu season, in areas were patients were present or patient care was delivered.

Less than 10% of Ontario’s 165 hospitals had such a policy. The Ontario Nurses’ Association immediately grieved the policy in all of the hospitals where it had been introduced. The Union’s grievance at the Sault Area Hospital ([2015] O.L.A.A. No. 339) was designated by the parties as a lead case. In that decision, arbitrator Hayes found that the policy was both unreasonable and inconsistent with the collective agreement. In doing so, he concluded that there was “scant” scientific evidence that would support the policy. The Union’s grievance was upheld.

Although the Sault Area Hospital immediately discontinued its policy, many others, including St Michael’s Hospital, did not. That necessitated this further proceeding. In order to ensure finality, the Ontario Hospital Association and the Ontario Nurses’ Association agreed that this award would be binding on both St. Michael’s Hospital and a number of other scheduled hospitals (except to the extent that an issue raised at another hospital had not been addressed). The hearing, which began on August 9, 2016, was heard over 21 days during three calendar years. The agreed question was whether the Vaccinate or Mask policies violated and/or conflicted with any of the collective agreements, and if so, were they reasonable.

Arbitrator Kaplan began his reasons by noting that a labour arbitration was not an ideal forum to establish best practices in public health:

Whatever its value, a labour arbitration is not an ideal forum by any intelligent measure to establish best practices in public health. In this case, a (second) hearing was made necessary by the continuing division of expert opinion, not to mention the disagreement in some quarters with the original arbitral outcome. In the result, questions that should normally be resolved by experts - based on the best possible evidence – must be decided by a decidedly inexpert tribunal through a collective agreement and labour law lens, albeit one that has been exceptionally well informed by a thoroughly argued case that included the evidence of internationally recognized experts, or persons with subject matter expertise.

While noting that there was no shortage of questions requiring answers, arbitrator Kaplan commented that two of the principal ones were “the extent to which unvaccinated [health care workers] pose a risk to patients – a risk of transmitting influenza especially when they are asymptomatic – and whether masking appreciably reduces that risk”. Arbitrator Kaplan restated the question to be determined as follows:

In the broadest possible terms, the issue to be decided, on the evidence is whether [the policies are] reasonable. Stated somewhat differently, the question to be answered is whether the evidence supports the conclusion that the use of surgical or procedural masks, worn by unvaccinated HCWs for some or all of the flu season, actually results in reduction of harm to patients? Does it prevent the transmission of illness? Does it save lives? If the … policy prevented patient illness and saved patient lives, its reasonableness would be difficult to challenge … If, on the other hand, the evidence indicated that the policy did not achieve this objective, and if the science said to support it was unsound at best, then the reasonableness of the policy would be appropriately called into question.

Arbitrator Kaplan began by considering the findings of arbitrator Diebolt in Health Employers Assn. of B.C. (2013) 237 L.A.C. (4^th) 1 (the “Diebolt Award”). There the arbitrator found that a policy that increased HCW influenza immunizations was reasonable. The policy was found to have a patient safety purpose and effect and also an accommodative purpose for health care workers who conscientiously object to immunization.

Here, arbitrator Kaplan found that the “new” or additional scientific evidence called by St. Michael’s Hospital corroborated and reconfirmed that which had been put before arbitrator Hayes. He stated that this case was to a large extent a repeat of the case before arbitrator Hayes, and it should therefore not be surprising that there was an identical outcome:

Ultimately, I agree with arbitrator Hayes: “There is scant scientific evidence concerning asymptomatic transmission, and, also scant scientific evidence of the use of masks in reducing the transmission of the virus to patients …  To be sure, there is another authority on point, and the decision in that case deserves respect. But it was a different case with a completely different evidentiary focus. It is not a result that can be followed.

Arbitrator Kaplan concluded that one day a  more effective influenza vaccine might be developed and more robust literature about influenza-specific patient outcomes may become available. Should that occur, the entire matter might be more appropriately revisited.

2. An employer was denied an adjournment of a scheduled arbitration despite the fact that the employer was having to focus its resources on the COVID19 pandemic. The arbitrator directed that the hearing proceed by way of video conference.

In Lakeridge Health Corporation, 2020 CanLII 31785 (ON LA) (Abramsky), the parties had adjourned after several days of hearing of a contested LTD claim. Further dates had been scheduled, but the COVID-19 pandemic intervened. Consideration was given to continuing the hearings via video-conferencing, but the employer objected on the basis that the Ontario Labour Relations Act did not provide an arbitrator with jurisdiction to compel a party to attend a video hearing without its consent.

After having considered the parties’ submissions, the relevant statutes, and the case law, arbitrator Abramsky concluded that an arbitrator had the authority to compel a party to proceed by way of a video hearing.

The arbitrator noted that civil and criminal courts have the power to hear evidence by video-conferencing, and that “the COVID-19 pandemic had only increased the move towards video hearings in the justice system”. In a Notice published by the Ontario Superior Court of Justice, the Court stated that it has a constitutional responsibility to ensure that access to justice is maintained, and for that reason, it had expanded its operations to ensure that all matters would be heard remotely by way of telephone or video conference. The arbitrator also commented that “Tripartite Guidelines for Videoconference Labour Mediation and Adjudication in Ontario”, published on April 8, 2020,  amounted to a recognition by the labour relations community that remote hearings, under the present circumstances, were a mechanism that might be used to conduct mediations and arbitration hearings. In arbitrator Abramsky’s view, the question then became whether, under the specific circumstances of this case, it was appropriate to hear this matter via video conferencing.

Arbitrator Abramsky commented that as time progresses:

No one really knows how long the current situation will continue, or if it will reoccur in the near future. I agree with the Union that the Employer, under these circumstances, is in effect, seeking an indefinite adjournment until an in-person hearing may resume. This is a very different request than whether a particular witness may testify remotely, or not. In the present situation, the hearing either proceeds electronically or it does not proceed at all. Consequently, a balancing of the interests of both parties must be considered, with the potential for prejudice as one factor.

After having referenced recent decisions involving a request for adjournent in the context of COVID-19,  arbitrator Abramsky gave specific consideration  to recent decisions of arbitrators Newman (April 25, 2020) and Goodfellow (April 20, 2020).

In Scarborough Health Network, 2020 CanLII 30377 (Newman), the employer had sought to adjourn a May 20, 2020 hearing date in a termination grievance due to COVID-19 related-circumstances. After having acknowledged an arbitrator’s authority to grant an adjournment in the circumstances, arbitrator Newman stated:

As arbitrator Luborsky has said, hearings cannot be adjourned for the duration of the health crisis. As arbitrator Harris has said, we must find ways of carrying on. Individuals will be inconvenienced if necessary, in order that we achieve that object. Deferring the resolution of labour arbitration hearings until the end of this health crisis is not an option.

Arbitrator Abramsky commented that he agreed with the approach of arbitrator Goodfellow in Toronto Transit Commission, (unreported, April 20, 2020 (Goodfellow)), where arbitrator Goodfellow stated::

I agree with [the employer] that an in-person hearing is preferable – it is at least the gold standard – and ought to be followed wherever possible. I also agree with [the employer] that we have not yet reached any kind of “new normal”, in which Zoom or any other form of video-conferencing, is the presumptive way to proceed in any or all cases. It is still, very much, a case-by-case, even a partial case-by-case, analysis. However, it is also clear that an in-person hearing is not possible and may not be possible for some considerable time.

HOWEVER, having said that, should at any point in the proceedings problems arise with the technology, or its application, or the manner in which the evidence  is being given that are related thereto, counsel are invited to raise them with me, immediately, for possible resolution or such other treatment as may be warranted. FURTHER, in argument on the motion, both parties will be free to renew (though not necessarily repeat) any aspect of their submissions, or any others they might wish to make, concerning the weight or other treatment to be accorded this or any other aspect of the evidence on account of the vehicle for its delivery.

Arbitrator Abramsky further stated:

In my view, a balancing of interests on a case-by-case basis is a reasonable and appropriate way to consider adjournment requests due to COIVID-19. There should also be a caveat, as set out by arbitrator Goodfellow, that should problems arise, the matter should be raised and addressed. The parties would also be free to raise any argument concerning weight in closing submissions.

Arbitrator Abramsky, after having considered the relevant criteria, concluded that this was not an appropriate case to adjourn the upcoming hearing dates. He ordered that the hearing scheduled for May 19, and potentially the other scheduled dates, should proceed through video conference and not be adjourned.