Arbitrator rules long-term care workers voluntarily isolating aren’t eligible for paid leave

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TORONTO – Full-time, part-time and casual employees at long-term care (LTC) facilities in Ontario are not entitled to paid leave if they voluntarily stay home from work after coming in contact with someone who has COVID-19, read a recent arbitrator’s decision based on the current collective agreements between the Ontario Nurses’ Association (ONA) and several long-term care home operators—including Manitoulin Lodge Nursing Home in Gore Bay.

“In my view, it was just and reasonable for the homes to treat part-time and casual employees who had symptoms or tested positive, and asymptomatic employees who did not test positive or were never tested, as posing a risk in accordance with government guidelines and unable to work until they no longer posed a risk,” read a decision by arbitrator John Stout dated May 26.

“Employees who are required to self-isolate are without a doubt caught in a very unfortunate situation,” he added.

ONA heard from 26 workers in Ontario LTC homes in dispute of not being compensated for periods of isolation due to COVID-19. Although those grievances were based on individual collective agreements between workers and specific homes, both sides agreed to group the claims together as a central rights arbitration.

ONA’s two main concerns were that all nurses who self-isolate, regardless of whether they have symptoms or are acting out of precaution, should be given a paid leave of absence whether they are full-time, part-time or casual. The union also argued that forcing asymptomatic nurses away from the workplace should not be permissible.

Mr. Stout said that, in general, employees are not entitled to pay if they do not go to work, unless their contract states otherwise. The LTC homes, he said, were not required to pay for precautionary self-isolation because there was no evidence of those workers being ill.

Although the homes in these cases had prevented employees from attending work, meaning the employee did not have a choice but to take unpaid leave, Mr. Stout said that was in line with the precautionary principle to keep LTC residents safe from the virus.

Under the current collective agreements, a full-time employee with COVID-19 symptoms would qualify for paid leave. However, if an employee with COVID-19 symptoms was part-time or casual, they would not get paid leave when they would enter self-isolation.

Likewise, if any employee was worried that they may have come into contact with the virus and chose to self-isolate without having any symptoms, regardless of their employment status, they would not be entitled to paid leave. 

An employee might choose to self-isolate without symptoms if they worry that they may be carrying the virus asymptomatically and capable of infecting the vulnerable people within their care.

Vicki McKenna, president of ONA, told The Expositor that the union was very disappointed in the ruling.

“Even if they’re asymptomatic, there is a risk and they want to keep the patients and residents they care for safe,” said Ms. McKenna. “When they self-isolate, the nurses suffer economically. They don’t get sick pay or any other form of compensation at all when that happens.”

Ontario’s Workplace Safety and Insurance Board stated on its website that it does not cover any precautionary self-isolation when no COVID-19 symptoms are present. 

Public Health Ontario, meanwhile, issued guidelines in late March for how health care workers should self-isolate while working if they are critical to their organization.

The Expositor contacted Employment and Social Development Canada for clarification on whether precautionary self-isolation would be legitimate grounds to collect Employment Insurance, but did not receive a response by press time Monday.

Ms. McKenna said lost income can be devastating to employees who work paycheque to paycheque or are navigating single parenthood. She said some employers have granted paid precautionary isolation leave but many others are hesitant.

She also cited the funding the Ontario government has given to the LTC sector to help during the COVID-19 crisis, saying the employers could have chosen to use that money to support unpaid self-isolating employees and reduce the risk of transmission.

“I think that’s very bad for staff morale, for one thing, but also a bad HR practice. I think we’re all in this together, let’s help one another,” said Ms. McKenna.

The Expositor contacted Jarlette Health Services, parent of Manitoulin Lodge Nursing Home, for comment on the ruling.

“We believe the award made during arbitration was the result of a well-reasoned decision,” read the full statement from spokesperson Stephanie Barber.

A follow-up question was not answered regarding how Jarlette would balance the risks of an asymptomatic employee being at work if they are unable to afford to take unpaid time off, even if they worry they may have been exposed to the virus.

Mr. Stout stated he felt for the workers facing financial hardship and not being entitled to paid leave, but said COVID-19 financial impacts are widespread.

Ms. McKenna said her union would begin to prepare for their next round of contract bargaining this coming fall and said COVID-19 would bring changes to working conditions just as SARS did in 2003.