Employer responded to co-workers’ concerns but determined worker wasn't a risk
An Ontario worker was not entitled to special COVID-19 sick leave benefits for staying home after concerns he might have been exposed to the virus, an arbitrator has ruled.
The worker was a tool and die maker for Ball Packaging Products Canada, a manufacturer of aluminum containers for the beverage and household products industries in Whiby, Ont., for nearly four decades. He worked four, 12-hour shifts followed by four days off, working two cycles of day shifts followed by one cycle of night shifts.
On March 22, 2020, Ball unilaterally implemented a paid COVID-19 leave policy in response to the pandemic. The policy allowed hourly employees to qualify for 10 days of paid crisis sick leave if they were sick with or had symptoms common to COVID-19, had to stay home to care for a dependant with COVID-19, or had to stay home due to quarantine.
Between the policy’s implementation and its end in June 2021, 44 employees at the Whitby facility received the paid crisis sick leave benefits.
Potential exposure to COVID
On April 13, 2020, the worker went to a long-term care home to relocate his mother. According to the worker, he only had contact with two nurses at the home.
The worker worked his next two scheduled shifts, but he missed a shift on April 17. He called his supervisor and advised that he couldn’t work because of “an issue with his parents.” He was able to work the following day.
According to the worker, Ball’s HR manager called him on April 20. He thought it was to discuss his April 17 absence, so he explained his mother’s relocation. The HR manager asked him if he wanted time off because co-workers had expressed concerns about his going to the long-term care home, as many such homes had outbreaks of COVID-19. The worker said he didn’t want to cause any friction so he would take 12 days’ vacation.
However, the HR manager advised him to take 14 days off, but she advised that he didn’t qualify for the crisis sick leave benefits because his absence wasn’t COVID-related. During the call, the HR manager asked him questions from an exposure risk questionnaire and he advised that he had no contact with the one person at the home who had contracted COVID.
Vacation leave
Despite being told that he didn’t qualify for the special leave, the worker took time off work because of “concerns in the shop.” He mostly stayed home during his entire vacation leave.
According to the HR manager, the worker’s supervisor had expressed concerns that the worker had been exposed to COVID-19, so she called the worker. After questioning him, se was satisfied that he hadn’t been exposed. She said that the worker raised the prospect of taking time off during a police investigation into the long-term care home, and they settled on 14 days off to accommodate his request. Although the 14-day period was equal to the period of isolation required by the paid crisis sick leave policy, it was coincidental, the HR manager said.
The HR manager emailed the worker’s supervisor and others in management about the worker’s “voluntary self-isolation,” which she said was to avoid disclosing the worker’s personal circumstances regarding his mother.
The worker thought it was odd that he didn’t qualify for paid crisis sick leave benefits and discussed it with a union steward, who advised that he should have been granted them. He then filed a grievance, contending that he was required to stay home to quarantine at the direction of the HR manager after his potential exposure to COVID-19 at the long-term care home and his obligations to his mother didn’t interfere with his ability to work. The union pointed out that the HR manager referred to the leave as “voluntary self-isolation” and it was equal to the required isolation period under the policy.
Didn’t qualify for crisis sick leave
The arbitrator found that the HR manager’s call was in response to concerns about the worker’s potential exposure to COVID-19, but after she conducted the questionnaire, she was satisfied that he wasn’t exposed and didn’t qualify for the crisis sick leave benefits. This made it unlikely that she would direct the worker to remain off work, particularly given the otherwise “generous application of the policy,” the arbitrator said.
The arbitrator noted that the worker didn’t raise any objection over the denial of such benefits at the time and it was most likely that he decided to take a leave of absence because he wanted to avoid any issues and “concerns in the shop.”
The arbitrator also found that the 14-day leave corresponding to the paid crisis sick pay allowable was coincidental and it would be “a leap that is too far to take” and didn’t prove that the worker was denied benefits under the policy while at the same time being directed to self-isolate.
As for the HR manager’s emails referring to “voluntary self-isolation,” the arbitrator believed the HR manager’s claim that it was to protect the worker’s privacy. The arbitrator added that the use of “voluntary” refuted the union’s position that she directed him to isolate.
The arbitrator determined that the worker was not directed to isolate and did not satisfy the criteria for paid crisis sick leave pay. See United Food & Commercial Workers Canada, Local 175 v. Ball Packaging Products Canada, 2023 CanLII 75166.
