Written on behalf of Peter McSherry
In a recent Ontario arbitration case, a union representing hospital workers asked the employer hospitals to pay additional COVID-19 pandemic pay to employees otherwise excluded under a government program.
Ontario Government Establishes COVID-19 Support Program
On April 25, 2020, the Ontario government announced a program of support for the “Frontline Heroes of COVID-19”, which offered pandemic pay of $4.00 per hour worked on top of existing hourly wages, as well as a $250 monthly lump sum for employees working at least 100 hours in a designated 4-week period.
The government program was intended to assist frontline staff who were experiencing severe challenges and who were at heightened risk.
Medical Residents Excluded by Government Program
The resulting arbitration dispute occurred between Ontario’s Teaching Hospitals and the union representing approximately 5500 of the medical residents they employed in Ontario.
The dispute arose because, under the government’s “Frontline Heroes” program, the residents were not on the eligibility list to receive the additional compensation.
Union Proposes Additional Compensation for Residents
As such, the union proposed that each resident employed by the Teaching Hospitals as of July 1, 2020, would receive a pandemic pay lump sum amount of $6,120 dollars and would be entitled to receive any front-line pandemic pay as may be subsequently provided to any other hospital employees.
The union arrived at the proposed amount with the following calculation: $4/hour x 80 hours/week x 16 weeks = $5120 (wage subsidy) + $1000 (lump sum: 4 x $250) =$6,120.
In response, the Teaching Hospitals argued that the union proposal should be rejected. It submitted that the Ontario government had been entitled to determine who received pandemic pay and who did not. It argued that the exclusion of certain workers, such as the medical residents, had been the decision of the government and one it was entitled to make. Additionally, the Teaching Hospitals cited numerous other arbitration decisions that had rejected this type of special adjustment over the course of the COVID-19 pandemic.
Arbitrator Rules in Favour of Union
Ultimately, the arbitrator ruled in favour of the union’s proposal, stating:
“The proposal is not statute-barred. In fact, the opposite is true: it is explicitly authorized. Moreover, in this case, the proposal actually replicates what the parties would have done in free collective bargaining. The evidence about this, as presented in the [union] brief, is overwhelming. When one adds in considerations of internal and external comparability, the case for granting this [union] proposal is made manifest (notwithstanding the Teaching Hospitals submissions about recruitment and retention). As the Ontario government made clear in its funding announcement:
The goals of this temporary pandemic pay were to:
- provide additional support and relief to frontline workers
- encourage staff to continue working and attract prospective employees
- help maintain safe staffing levels and the operation of critical frontline services
Recruitment and retention did not apply to residents, but the other goals of the temporary pandemic pay program are completely applicable. Residents were intimately and integrally on the frontlines: there is no ambiguity about this and there is, likewise, … no rational basis for their exclusion. None of the authorities that were submitted are of assistance in disposing of this matter.”
However, the arbitrator altered the union’s proposal by substituting the 80-hour work week used in their calculation with a 60-hour work week, stating:
“This award, needless to say, conservatively estimates the extent of resident hours worked, not to mention the very real personal and professional challenges they faced, especially in the uncertain attenuated early days when so much about the transmission of COVID-19 was unknown.”
As such, the union’s proposal was awarded to the medical residents for the prescribed time period.
If you are an employee concerned about 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 Guelph employment lawyer Peter McSherry. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.