Do employers have to pay employees if they are forced to quarantine, symptomatic or test positive for COVID-19?

The impact of the pandemic continues to impact many workplaces and many employers are not sure whether they have to pay employees who are forced to quarantine or self-isolate but who are not themselves ill or exhibiting signs of COVID-19.  Two recent arbitration decisions have helped to shed light on this question.

In an Ontario arbitration decision rendered by Arbitrator Stout on May 26, 2020, the Ontario Nurses’ Association (ONA) filed several grievances at various participating nursing homes relating to nurses’ claims for compensation involving situations where:

• the employee is symptomatic or tests positive;
• the employee is asymptomatic and does not test positive or is never tested, and is absent from work due to:
  1. travel;
  2. exposure;
  3. public health or government guidance or direction;
  4. instruction from the employer to remain off work.

ONA argued that all nurses who self-isolate due to COVID-19 are deemed sick or should be on a paid leave of absence from their workplace. ONA also argued that the nursing homes cannot hold an employee out of work without just cause or force them to take a leave of absence.

The employer argued only those employees who are actually ill or tested positive for COVID-19 are entitled to compensation.

After reviewing the specific terms of the respective collective agreements between the parties, Arbitrator Stout sided with the employer and found that:

• in cases where full-time employees test positive for COVID-19 or are symptomatic, they are entitled to the income protection benefits under their respective collective agreements since the employees are clearly suffering from a legitimate illness that prevents them from working.  Arbitrator Stout also determined that those full-time employees are entitled to income protection benefits during the period after their symptoms subside but are not legally permitted to return to work.  However, since the full-time employees were asymptomatic, and did not test positive for COVID-19, they were not entitled to income replacement or sick pay. 
• In cases where asymptomatic employees do not test positive or are not tested but required to self-isolate, they do not suffer from a “handicap” and are therefore not entitled to income replacement benefits.  Arbitrator Stout found that the employer was correct in taking the position that those employees who pose a risk from working in accordance with federal and provincial directions and orders should remain off from work and there was no requirement to pay them under the collective agreement.
• With respect to part-time and casual employees, Arbitrator Stout found that these employees are not entitled to any income replacement benefits under their respective collective agreements and accordingly were not entitled to be paid for any absences for COVID-19.

A similar conclusion was reached in a Saskatchewan decision, UFCW, Loc. 1400 v. P & H Milling Group where the arbitrator determined that an employer was not required to pay sick leave to employees who are not suffering from COVID-19 symptoms or test positive for COVID-19 but have:

• recently returned from outside of Canada and were required by the federal government to quarantine for 14 days;
• been exposed to an individual who had recently been outside of Canada and was directed to self-isolate by his supervisor; or
• chosen to self-isolate after coming into contact with an individual who was related to a person who tested positive for COVID-19.

The Arbitrator determined that unless the employee was actually sick, the employer was not obligated to provide sick pay under the sick leave policy.

Take-aways from decision

While these decisions occurred in a unionized context and depend largely on the specific language of the collective agreement, these decisions suggest employers generally will not have to pay employees who are required to quarantine or self-isolate due to exposure to COVID-19, unless there is a contract, company policy or collective agreement that states otherwise.