Employer instructed employees to follow public health guidelines and stay home
An Alberta employer breached the collective agreement when it denied holiday pay to employees who couldn’t work on a holiday because they were self-isolating or quarantining due to COVID-19 contacts or symptoms, an arbitrator has ruled.
Fort McKay Logistics is an integrated supply chain company in Edmonton. Its collective agreement included a statutory holiday provision requiring the company to pay employees their regular pay for a statutory holiday, regardless of whether they worked it or not. Those who did work on a statutory holiday received pay for all hours worked at time-and-a-half, in addition to their regular pay.
Employees who were scheduled to work but were absent “for reasons other than proven sickness or with company authorization” would not receive holiday pay. This was in line with the Alberta Employment Standards Code (ESC), which entitled employees to holiday pay unless they were “absent without the consent” of the employer.
When the COVID-19 pandemic hit Alberta, the province issued several public health orders. In May 2021, a public health order required individuals with COVID-19 symptoms or who tested positive to self-isolate for at least 10 days from the date their symptoms began. Close contacts were not required to self-isolate if they tested negative and their symptoms resolved.
Individuals who where a close contact to or were returning from international travel had to quarantine for 14 days unless they were fully vaccinated.
Public health orders
The Alberta government passed a regulation under the ESC in 2020 stating that employees who were in self-isolation or quarantine as a result of COVID-19 were considered to be on COVID-19 leave. Fort McKay Logistics unilaterally deemed that it was required to recognize any employees who notified it that they had to self-isolate or quarantine as being on COVID-19 leave.
From 2020 to 2022, COVID-19 leave was accessed nearly 3,000 times by Fort McKay Logistics employees, with just over 700 testing positive.
May 24, 2021, was Victoria Day, a statutory holiday covered in the collective agreement. Three employees who were scheduled to work that day did not because they had previously notified the company that they were self-isolating or quarantining due to COVID-19 symptoms or close contact with a confirmed case or a positive test. Four others had tested positive. Fort McKay Logistics had directed all of these employees to comply with public health orders and told them they “must be symptom-free to report to work” and they were to contact the employee health centre to discuss their return to work.
The company had to find replacement employees to cover the holiday shifts at a significant additional cost. It did not pay holiday pay to the three employees who had not tested positive, as it took the position that they had not established a proven sickness or been authorized to remain off work.
Union contested denial of holiday pay
The union filed a grievance alleging that Fort McKay Logistics violated the collective agreement by not providing holiday pay for the employees who were self-isolating or quarantining. It argued that holiday pay was a statutory right and an earned benefit under the collective agreement that was part of the overall compensation package.
The union also argued that the employees were prohibited from going to work by public health regulations and the company had authorized their absences by directing them to follow the public health rules. In addition, the pandemic was “an unprecedented event that clearly had not been contemplated” when the collective agreement had been negotiated, it said.
The arbitrator found that Fort McKay Logistics had no choice but to prohibit employees who were required to self-isolate or quarantine from coming to work. However, it instructed the employees to follow the protocols and clearly indicated that it had the final say in determining when they could return.
“The company was much more than a passive taker of COVID regulations that merely ‘recognized’ that it had health and safety obligations to keep certain employees off work,” said the arbitrator.
Employer’s instructions constituted authorization
The arbitrator also found that the company’s formal instructions and heavy involvement in following public health guidelines was implicit authorization under the collective agreement and consent under the ESC for the employees to be absent on May 24, 2021.
“Interpreting authorization narrowly to require some positive formal ‘authorization’ by the employer would unreasonably deprive employees from an earned benefit that is part of their compensation package,” said the arbitrator, adding that the employees were absent for legitimate reasons during the pandemic.
The arbitrator determined that the three employees who had not tested positive but were self-isolating or in quarantine under public health regulations and the four who had tested positive had all been authorized by the company to not work on Victoria Day. As a result, they were entitled to holiday pay under the collective agreement, the arbitrator said. See Fort McKay Logistics v. General Teamsters, Local 362, 2023 CanLII 25366.
