Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish.
When the land border between Canada and the United States closed in March, thousands of people who make the daily commute to work across the border were left in a difficult situation.
United Steelworkers Local 2251 v Algoma Steel Inc. deals with one such person, a machinist apprentice at a steel plant in Sault Ste. Marie, Ontario.
Each day the employee made the approximately 30-minute commute from his home in Chippewa County in Northern Michigan to the plant in Sault Ste. Marie. Because he was crossing the border for employment reasons, he was exempted from the border closure and from the mandatory 14-day period of self-isolation. However, his employer wanted to go further in creating a “Covid free” worksite. It implemented a policy that any of its employees who enter the country must isolate for 14 days before attending work.
This employee has custody of his two young children on the weekends and they would not be entitled to cross the border with him. This made it impossible for him to enter into Canada fourteen days prior to entering the workplace. The Union challenged the application of the self-isolation policy and its impact on this employee.
The arbitrator reasoned that, while this policy would generally be reasonable, it would not be reasonable to apply it without considering obligations under the Human Rights Code to accommodate family status. In this “unusual case,” the policy forced the employee “to make the difficult choice of having access to his two young children or to make a living.” The arbitrator also noted the fairly low rates of COVID-19 in the employee’s home area.
The Arbitrator concluded that the “competing legitimate rights” must be balanced. Instead of the blanket ban on employees crossing the border, the employer could assign him to work separately from other employees, require that he wear PPE, and take extra social distancing and sanitizing protocols. Consulting with the Union, it could consider mandatory testing and even restricting him from travel to designated COVID-19 “hot spots” in the United States.
While governments and employers have taken sweeping and necessary action, this case is a helpful reminder that the approach to fighting the pandemic cannot disregard important worker and human rights protections. Here, a nuanced resolution was possible in a relatively short period of time, highlighting the importance of unions in advocating for their members as we navigate the COVID-19 workplace.
If you have questions or concerns about the implications of COVID-19 on your employment, please call 613-567-2901 or email [email protected]. If you are a member of a union, please contact them directly for assistance in dealing with your workplace issue.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]