Workers had no COVID-19 symptoms, worked outside
An Ontario employer’s ordering of two workers to stay off work and isolate despite not having any COVID-19 symptoms was unreasonable, an arbitrator has ruled.
Ottawa Hydro operates the power grid for the City of Ottawa, employing both inside and outside workers.
The two workers were a powerline technician and a plant inspector. The powerline technician served and repaired overhead power lines almost exclusively outdoors – it was possible he could be assigned to work on an underground line, although that was rare - and, during the pandemic, always wore a mask and distanced from others. The plant inspector inspected and verified the work of contractors at construction sites, also all outdoors.
In early May 2021, the powerline technician was informed that his son was exposed to someone at his daycare who had tested positive for COVID-19. Ottawa Public Health instructed him to isolate his son at home for 14 days and, if his son remained symptom-free during that period, other household members could leave home for essential tasks such as going to work. No one in the family showed any symptoms of COVID-19.
The technician contacted his supervisor, who told him to stay home and isolate. After seven days, his son tested negative on a PCR test and Ottawa Hydro allowed him to return to work on May 17. Even though the public health authority had said that the worker could attend work as long as his son had no symptoms, Ottawa Hydro felt that different health units applied different rules and it wanted to err on the side of caution. The worker missed five days of work and used five days from his paid sick bank because he was his family’s sole income earner.
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Close contact outdoors
On April 23, the plant inspector returned to the yard at the end of his shift and spoke with his supervisor outside. They stood on either side of the inspector’s truck - a little under six feet - for less than 15 minutes. Five days later, the supervisor advised that he had tested positive for COVID-19 and he had told the health unit that they had not been in close contact. The plant inspector did not have any symptoms, but he was told to go home and isolate, only being allowed to return after a negative COVID test on May 5. He lost four-and-a-half days of work, but used his paid sick bank to cover the time.
Ottawa Health again erred on the side of caution with the plant inspector, as it was concerned about a spike in cases and institutional outbreaks, and the city was doing an inspection blitz on construction sites.
The union filed a grievance on behalf of both workers seeking reimbursement for their sick banks. It argued that Ottawa Hydro should have never placed them off work and it forced them to use sick credits to cover their time off.
The arbitrator noted that Ottawa Hydro had a duty under the Ontario Occupational Health and Safety Act (OHSA) to take reasonable steps to reduce the transmission of COVID-19, and it acted in good faith in response to the two workers’ situations. The question was whether the utility’s actions were arbitrary or reasonable, said the arbitrator.
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Low risk of transmission
The arbitrator considered that, although the transmissibility of the Omicron variant was high at the time, the workers both worked almost exclusively outdoors, wore masks, socially distanced themselves, and were symptom-free. In addition, Ottawa Health performed daily screening of active employees and could have included daily testing for the two workers and required them to wear additional protective gear such as respirators, the arbitrator said.
The arbitrator also found that the health unit had expertise and a mandate to reduce transmission of the virus, indicated that the powerline inspector could go to work as long as his son remained symptom-free. As for the plant inspector, he met the definition of close contact with someone who tested positive, but it was outdoors and he remained symptom-free for five days after the interaction.
The arbitrator determined that it was not reasonable to order the two workers to stay home and isolate. Although they had plenty of hours in the sick bank to cover their time off, they were entitled to be placed in the same position they would have been but for Ottawa Health’s breach of the collective agreement.
Ottawa Hydro was ordered to credit the workers’ sick banks for the time they used to cover their absences. See Hydro Ottawa Ltd. v. International Brotherhood of Electrical Workers, Local 636, 2023 CanLII 36199.
