Failure to Comply with Public Health Guidance Can Be Just Cause for Dismissal

Written on behalf of Peter McSherry

It is now an uncontroversial statement to say that COVID-19 has dramatically changed workplaces around the world, including here in Guelph and the surrounding area. Previously, we have covered how the pandemic has increased employee burnout, contributed to the advancement of workplace flexibility rights and led to an increase in mandatory vaccination workplace policies.

The virus and the related public health restrictions have also changed workplace culture around attending work when unwell. Prior to the pandemic, many offices were sure to keep common areas and break rooms stocked with plenty of Kleenex during the winter months as it was not unusual for employees, clients and customers to attend the workplace with cold and flu symptoms.

Today, the Public Health Agency of Canada recommends you stay at home and isolate if you have any of the following symptoms:

• Sore throat, runny nose, or sneezing;
• New or worsening cough;
• Shortness of breath or difficulty breathing;
• Temperature equal to or more than 38°C;
• Feeling feverish, chills, fatigue or weakness, or muscle or body aches;
• New loss of smell or taste;
• Headache;
• Abdominal pain, diarrhea and vomiting; and,
• Feeling very unwell.

Employers have been grappling with developing or adjusting policies on absenteeism, sick leave, and more to support the implementation of this guidance in the workplace. While most employees comply with the public health guidance, employers are sometimes faced with situations where employees attend work anyway despite the guidance to isolate at home. In these situations, what level of discipline is appropriate? Can it include corrective actions, suspensions, or even termination of employment? One arbitrator was tasked with reviewing this when an employee attended work while awaiting the results of a COVID-19 test, which was later confirmed to be positive.

Employer’s Guidance to Isolate While Awaiting COVID-19 Results

In Garda Security Screening Inc. v. IAM, District 140 (the “Shoker Grievance”), the employee at the centre of the issue worked in person at an airport with regular contact with other employees and members of the public. The workplace had a Code of Ethics, that the employee signed off on every year.

Near the beginning of the pandemic, in March of 2020, the employer communicated to all employees the Public Health Agency of Canada’s guidance on COVID-19 that was in place at the time. This included the recommendation that individuals isolate at home away from others if they were experiencing COVID-19 symptoms or if they were awaiting the results of a COVID-19 test. At that time employees were aware that they were not to report for work if “they have gone for a test and are waiting for the results of that test”.

Employee Attends Work in Contravention of Employer’s COVID-19 Guidance

The employee contacted her family doctor to advise of a headache, a symptom she attributed originally to a sinus issue. The employee stated that the doctor prescribed her some medication and she started to feel better.

The employee then contacted the doctor a second time, which the arbitrator determined was either because her symptoms reappeared or were worsening. At that point, the employee stated her doctor told her to obtain a COVID-19 test, due to the fact that she worked at the airport. She received the test on April 6.

She stated she remained off of work on April 6 – 8, while awaiting test results. The test results came back positive for COVID-19 and the employer placed her on a leave of absence until she could return to work on April 23. In the meantime, the employer began contact tracing and there was a discrepancy over whether or not she attended work on April 6.

Employer Investigates Potential Breach of COVID-19 Guidance

When the employee returned to work on April 23, the employer asked for a written statement about her actions. In the written statement, the employee repeated that she was tested on April 6 and that she remained off of work April 6 – 8 while awaiting the results of the test. The employer had other information that indicated she did in fact work on April 6.

The employer met with the employee after receiving her written statement. During the meeting, they reviewed the guidance that had been provided to employees about the need to isolate while awaiting the results of a COVID-19 test. The employee confirmed she had read it and complied with it.

However, she later acknowledged attending work on April 6, despite awaiting the results of a COVID-19 test. When asked for an explanation she stated that she did not feel unwell that day.

Arbitrator Reviews Employer’s Decision to Terminate

The employer terminated the employee’s employment due to her failure to isolate as required under the public health guidance and employer policy for employees awaiting COVID-19 test results that were in place at that time.

The arbitrator reviewed the situation and determined that the employer had engaged in sufficient efforts to inform employees of their obligations to isolate while awaiting test results. The arbitrator made further determinations that the employee’s explanation of her failure to comply with the guidance and policy was not reasonable. In determining this, the arbitrator highlighted the wall-to-wall media coverage of the COVID-19 pandemic at that time, the employer’s clear communications, the risk to colleagues and the travelling public, and the employee’s failure to be truthful during the investigation.

The arbitrator upheld the employer’s decision to terminate employment finding it was appropriate under the circumstances.

The arbitrator provided their reasons, including that the employee’s actions were:

a clear violation of the employer’s and public health guidelines. Her claim of not feeling sick is absolutely irrelevant. She was required to isolate, as she knew, for the safety and health of others. She chose not to, thereby putting countless others at risk of illness or death.

Moreover, the arbitrator was concerned that at the hearing, the employee showed no remorse for what she did or the impact of her actions in potentially infecting her colleagues or members of the public.

Contact Peter A. McSherry, Guelph Employment Lawyer for Experienced Advice on Dismissals and COVID-19 Policies

If you are an employee concerned about the dismissal of your employment or the legality of workplace policies, or an employer looking to ensure you stay compliant with health and safety regulations as they relate to COVID-19, contact the offices of Peter A. McSherry Employment Lawyer in Guelph. We regularly assist employees with employment and labour issues. Contact us online or by telephone at 519-821-5465 to schedule a consultation with Peter A. McSherry.