In a recent decision Ontario Nurses' Association v Humber River Hospital, arbitrator Norm Jesin ruled that employees who are required to self-isolate are not entitled to sick pay if they are asymptomatic and never test positive for COVID-19. On the other hand, he also stated that employees who test positive while isolating are entitled to sick pay for the entire duration of their isolation.
On March 24, 2020, Humber River Hospital ("the Hospital") sent a memo to all staff outlining its COVID-19 protocols, including those dealing with self-isolation.
Under the policy, employees who self-isolated, but were asymptomatic during the isolation period and never tested positive for COVID-19, were not entitled to sick pay. Furthermore, individuals who tested positive for the virus only received sick pay from the date they received their positive test result, in spite of the fact that they may have been self-isolating for prior.
Under the collective agreement, the Hospital was required to provide full-time employees with short-term sick leave benefits. For employees to receive these benefits, they must have been suffering from a "total disability," meaning that they must have been unable to perform their duties as a consequence of their injury or illness.
From the Hospital's point of view, an employee who was required to self-isolate, but who nevertheless tested negative or displayed no symptoms of COVID-19, was not absent because of an illness. As a consequence, such employees were deemed ineligible for sick pay.
In contrast, the union argued that, since individuals are required to self-isolate under various circumstances in order to curb the spread of COVID-19, employees in isolation were indeed unable to perform their duties because of an illness. For these reasons, the union's position was that the Hospital's employees were entitled to sick pay for the entire duration of their isolation, regardless of whether they were asymptomatic and never tested positive.
In light of this backdrop, the arbitrator had to answer two main questions. Arbitrator Jesin first had to determine whether employees who were required to self-isolate were entitled sick pay benefits under the collective agreement. In addition, he also had to decide if an employee's entitlement to sick pay benefits started when they began self-isolating, or when the employee in fact tested positive.
Employees Must be Ill to Receive Sick Pay Benefits
In beginning his analysis, Arbitrator Jesin acknowledged that sick pay is reserved for employees who are indeed ill. While an employee may be required to isolate as a means of preventing the spread of an illness, they would not be entitled to sick pay unless they establish that they are suffering from an illness. In other words, the fact that an employee has to isolate does not mean that they are in fact ill.
For this reason, Arbitrator Jesin agreed that employees could not be considered ill if they did not exhibit COVID-19 symptoms or test positive during their period of isolation. Thus, these employees were not entitled to sick pay under the collective agreement.
Employees who Self-Isolate and Test Positive for COVID-19 are Entitled to Sick Pay for the Duration of their Isolation
Arbitrator Jesin then shifted his focus to when the entitlement to sick pay began for employees who tested positive for COVID-19 while in isolation. For employees in this situation, the Hospital provided sick pay from the date on which they tested positive, rather than the date they began isolating. Arbitrator Jesin disagreed with this approach, and stated that the illness did not begin with the positive test result.
Rather, if a positive test demonstrated that an employee was infected with COVID-19, the illness commenced when the employee was exposed to the virus. As a consequence, Arbitrator Jesin determined that an employee who self-isolated in accordance with the Hospital's Covid protocols and eventually tested positive was ill throughout the entire period of isolation. For that reason, such employees were entitled to sick pay throughout that period.
The Bottom Line
The highly transmissible Omicron variant of COVID-19 has led to higher exposure rates than prior pandemic "waves" and, consequently, more people are in self-isolation. That said, employers should have a process in place to prevent sick pay abuse when employees are asymptomatic, particularly given reduced access to PCR testing.
Accordingly, it is strongly recommended that all employers implement a comprehensive (and lawful) sick leave policy, which is regularly reviewed by employment law counsel given the ever-changing state of the law and, the unpredictable nature of the current pandemic.
For expert legal advice on all aspects of your workplace, including issues specific to COVID-19, please do not hesitate to contact us.