As we approach the one-year anniversary of the COVID-19 pandemic, we are finally beginning to receive guidance from the courts and other decision makers with respect to disciplinary responses by employers to employees’ failure to take reasonable COVID safety precautions in the workplace. Two recent arbitral awards out of Ontario, Garda Security Screening Inc. v IAM, District 140,  OLAA No. 162 and LIUNA, Local 183 v Aecon Industrial, 2020 CanLII 91950, give some positive guidance for employers in British Columbia. In both decisions, the arbitrators upheld the employers’ decisions to discharge employees who failed to abide by COVID safety protocols in the workplace.
The Garda Decision
In late March, 2020, Garda communicated various public health guidelines related to COVID to all of its employees. The guidelines stipulated that employees waiting for the results of a COVID test had to self-isolate, and could not report to work.
On April 12, 2020, a Garda employee at Pearson International Airport informed Garda that she had tested positive for COVID. As a result, Garda placed the employee on leave and asked her to prepare a written statement. In the statement, the employee advised that she had been tested for COVID on April 6, 2020, and that she had not reported to work between April 6 and 8, while waiting for her test results. The employee further advised that she was not aware that she was required to self-isolate while waiting for the results.
Following further investigation, Garda determined that, contrary to her statement, the employee did in fact work on April 6. In addition, the employee admitted that she had seen the guidelines that required her to self-isolate, but that she had attended work on April 6 because she did not feel sick. As a result of the foregoing, Garda terminated the employee’s employment on April 23, 2020.
At the hearing, Arbitrator Keller upheld the termination decision. He concluded that the employee’s actions were in clear violation of both Garda’s guidelines, as well as those from other public health agencies. He dismissed the employee’s claim that she attended work on April 6 because as she did not feel sick as irrelevant, instead finding that she knew that she was required to isolate and chose not to, thus endangering all those around her.
The Aecon Decision
On April 9, 2020, an employee at one of Aecon’s locations advised his foreman, prior to arriving for his shift, that he was experiencing gastrointestinal distress. The employer told the employee that his symptoms may be associated with COVID and that he was to stay home until he received a call from the employer’s nurse. The employee contacted the employer twice more on April 9 to follow up. In both instances, the employer again advised the employee that he was to stay home and await further instructions. The employee did not attend work on April 9, 2020.
The employee’s next scheduled shift was April 14, 2020. Despite not speaking to the employer or the employer’s nurse, the employee attended at work on that date. By that point, his initial symptoms had subsided. However, he had developed a runny nose. Upon arrival, the employee was asked to complete a COVID screening questionnaire. The questionnaire included questions asking employees to identify if they were suffering from any symptoms of COVID, including a runny nose. The employee responded in the negative to all of these questions.
Shortly thereafter, the employer determined that the employee had not been cleared to return to work and was symptomatic. The employer sent the employee home, and ultimately terminated his employment.
At the hearing, Arbitrator Carrier upheld the termination. He observed that the employee had ignored the employer’s clear instructions to remain at home until he was contacted, and had lied on the COVID questionnaire. As a result, the employee had endangered all other persons in the workplace and his actions merited “very significant discipline.” Of note, the employee in this matter also had a recent disciplinary history that included other safety violations.
These awards provide helpful guidance for employers regarding justifiable discipline for employees who fail to abide by COVID-related safety protocols in the workplace. However, as was the case in these awards, in order to justify any discipline imposed for a failure to comply with safety protocols, employers in British Columbia should ensure that they clearly communicate their COVID protocols and other public health guidelines to their employees, and warn employees that they may be subject to discipline for non-compliance.