Williams HR Law LLP

FAMILY STATUS ACCOMMODATION AND COVID-19

November 26, 2020

For many employers, managing the effects of COVID-19 in the workplace has required a delicate balance between two issues: the rights of employees to equitable treatment, and the obligations of an employer to operate a safe and productive workplace. A recent Ontario labour arbitration decision, United Steelworkers, Local 2251 and Algoma Steel Inc. (Gendron), Re, makes clear that an employer’s workplace safety obligations will not necessarily justify COVID-19 related workplace policies that effectively discriminate against workers.

Facts

The grievor, Kyle Gendron, is a dual Canadian and American citizen who had been working at Algoma Steel Inc., a Canadian company (“Algoma”). He lived in Chippewa County, Michigan and traveled across the border daily to work in Sault Ste. Marie, Ontario.

After the onset of the COVID-19 pandemic, Algoma implemented a workplace policy (the “Policy”) that required every employee who crossed the Canada-US border to self-isolate for 14 days. Mr. Gendron had two young children who lived in the US and stayed with him on his days off. For Mr. Gendron to comply with the Policy and continue work, he was required to temporarily move to Canada. Mr. Gendron chose to remain in the US to maintain access to his children, who could not cross the border to stay with him. At the time of the decision, Mr. Gendron had been unable to work for approximately four months.

Under Ontario’s Human Rights Code [Code”], an employer has a legal duty to accommodate family status, including parents’ childcare obligations, up to the point of undue hardship. The Union, on behalf of Mr. Gendron, argued that the Policy’s application to Mr. Gendron was unreasonable, as Algoma failed to sufficiently consider accommodations that would allow him to work.

Algoma acknowledged its duty accommodate Mr. Gendron’s family status, but argued that it could not do so without undue hardship, as the Policy was necessary for it to meet its obligations under the Occupational Health and Safety Act [“OHSA”] to take every reasonable precaution in the circumstances to protect its workers.

Decision

The Arbitrator found that while it was reasonable for Algoma to create the Policy, Algoma’s indiscriminate application of the Policy to Mr. Gendron was unreasonable and constituted discrimination based on family statusMr. Gendron’s legitimate right to work free from discrimination and Algoma’s obligations to take precautions to protect the health of its workers must be balanced, and specific circumstances must be considered.

The Arbitrator considered external and internal factors related to COVID-19 that impacted Algoma’s duty to accommodate Mr. Gendron. The Arbitrator considered that Chippewa County specifically had low COVID-19 numbers, as compared to the rest of the US. The Arbitrator also noted that Algoma had implemented enhanced sanitizing and PPE protocols in common areas, minimizing the risk that Mr. Gendron could expose his co-workers to COVID-19 through use of those areas.

The Arbitrator, while ultimately directing Algoma to exempt Mr. Gendron from the Policy, stated that Algoma could reasonably employ several measures to meet its health and safety obligations, including:

  • assigning Mr. Gendron to tasks and shifts Algoma deems necessary to minimize safety risks, including placing Mr. Gendron at a distance from most other employees;
  • requiring Mr. Gendron to follow enhanced health and safety protocols; and
  • after Mr. Gendron returns to work, and in consultation with the Union, other terms related to testing and travel (such as requiring Mr. Gendron to undergo COVID-19 testing at regular intervals while in Ontario, and requiring Mr. Gendron to be restricted from travelling to designated COVID-19 “hot spots” in the US while the Policy was in place).

Takeaways

This decision serves as a reminder to employers that obligations to ensure health and safety must be balanced with obligations to ensure equitable treatment under human rights legislation. Any COVID-19 related workplace policies put in place must be flexible enough to respond to the unique circumstances of individual employees, especially as the pandemic continues to indefinitely impact upon employees’ health and family caregiving obligations.

Parties to the accommodation process should exercise flexibility and compassion. Employers should not insist upon a “one-size-fits-all” approach as accommodation, but examine the circumstances on a case-by-case basis. Employees should similarly be made to understand, perhaps through the employer’s accommodation policy, that they must be open to reasonable accommodation and are not entitled to the perfect accommodation they may want.

As always, our team is ready to assist you with the implementation of COVID-19 related policies and any accommodation issues that may arise.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.

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