Public Health and Legal Responses to the Pandemic: What’s behind us, what lies ahead

For nearly a year, employers, unions, and workers have struggled with unprecedented challenges presented by the COVID-19 pandemic. Many challenges were overcome through union-employer collaboration, but, inevitably, disputes have arisen regarding appropriate health and safety measures, entitlement to paid sick leave, policies and procedures departing from agreed-upon collective agreement provisions, and many other issues. In this session, experienced union and management counsel will review leading decisions that have emerged from the disputes, and a public health expert will flag current and upcoming challenges workplace parties will have to overcome as Canada waits for the largest vaccination effort in history to bring the pandemic to a close.

What is the current public health situation in Canada? What needs to happen before the pandemic is over? What types of restrictions and precautions (e.g., physical distancing, wearing masks, restrictions on certain businesses) will have to stay in place until the end of the pandemic?
How are vaccination programs progressing across Canada? Is the level of priority placed on vaccinating health care workers and other essential workers consistent across Canadian jurisdictions? Are the definitions of health care workers and/or essential workers that are being used for vaccination purposes consistent across Canada? If not, why?
In the face of conflicting evidence and public health messaging regarding virus transmission, masks, and other preventative measures, how have adjudicators decided what measures an employer is required to take as part of the obligation to take “every reasonable precaution” to ensure the health and safety of workers? Do adjudicators require scientific certainty that specific protective measures or types of personal protective equipment are effective?
In what circumstances, if any, have adjudicators found that an employee was justified in engaging the work refusal process to avoid exposure to COVID-19?
In the context of the pandemic, are adjudicators striking a different balance between employee privacy and autonomy and employer interests and obligations than they might have otherwise? For example, are employer policies requiring COVID-19 testing being upheld? Will arbitrators apply jurisprudence regarding employer-mandated vaccination against the flu to employer policies requiring employees to be vaccinated against COVID-19?
Given the potentially fatal consequences of a breach, is dismissal the appropriate penalty for an employee who, contrary to employer policies and public health guidance, attends work while experiencing symptoms associated with COVID-19 or after having been exposed to the virus?
Are employees entitled to leave or benefits if they are self-isolating as a precaution, are subject to a mandatory quarantine, suspect they have been exposed to COVID-19 but are asymptomatic, or are caring for a family member who is ill?
In what circumstances have arbitrators found that employer deployment and/or staffing practices contrary to an applicable collective agreement were permitted by work deployment orders issued by the Ontario government pursuant to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020?
In the absence of such legislation, do employers have residual management rights that may allow them to disregard collective agreement provisions in an emergency such as this pandemic?