In this case, the grievance arbitrator was asked to review an employer’s decision not to remunerate an employee during a self-quarantine period while awaiting the results of a COVID-19 screening Test

The facts

The complainant was an ambulance technician employed by the employer, a private enterprise. After a close and prolonged contact with a colleague infected by COVID-19, the complainant was ordered to undergo a screening test and to remain in quarantine until receipt of the result in accordance with the guidelines of the Institut national de santé publique du Québec (INSPQ). The employer decided to withhold pay for this three (3) day quarantine period, considering that the measure was not covered by the collective agreement or any of the laws and various ministerial decrees rendered within the context of the pandemic. 

This decision was challenged by grievance. In addition to certain arguments based upon the applicable collective agreement, the union relied upon paragraph 10(2) of the Act respecting occupational health and safety (AOHS), which provides for the right enjoyed by any worker to receive the preventive and curative health services relating to the risks to which he may be exposed, and his wages for the time spent in undergoing a medical examination during employment prescribed for the application of this Act and the regulations”.

Furthermore, the union argued that even if the pandemic is deemed to be a force majeure” event, the employer cannot use it to escape its obligation to pay its personnel, who may be required to be absent from the workplace due to the pandemic. 

The decision

The arbitrator first ruled that even though no provision of the collective agreement dealt with the grievance under review, there was a sufficient connection between the grievance and the collective agreement on the issue of remuneration to allow jurisdiction to the tribunal for purposes of ruling on the matter. 

On the merits, the arbitrator agreed with the employer’s submissions. 

In the arbitrator’s view, the dispute fell within the jurisdiction of the AOHS, but did not arise out of section 10 as argued by the union. In fact, according to the interpretation of the arbitrator, the situation could not be classified as a risk arising out of the performance of work as contemplated by this provision. Furthermore, the duty to remunerate referred to solely covers a situation where a health check is required during the course of employment, which had nothing to do with the case under review, i.e., a period of home self-quarantine. 

The arbitrator ruled that Sections 49 and 51 AOHS apply to the matter as they represent one of the principal cornerstones underlying the recommendations, directives and/​or guidelines handed down by the INSPQ and applicable to the workplace.

The arbitrator also underlined that these provisions create duties in the health and safety sector, for employer and employee alike. For example, section 49 AOHS requires workers to take necessary measures to ensure their health, safety and physical well-being and to ensure that they do not endanger the health, safety or physical well-being of other persons at or near their workplace. Section 51 AOHS provides that the employer has to take all measures necessary to meet this objective. 

Based upon this premise, the arbitrator indicated that the employer had no other choice, in order to respond to the expectations of the INSPQ, other than to implement the basic preventive measures in order to prevent infections, deliver relevant information in this regard, facilitate the application of public health measures and favour compliance with the quarantine guidelines.

On her side, the employee who was party to the grievance had the duty to self-quarantine at home in cases of close contact with an infected person up until such time as she received a negative Covid-test result. In other words, the INSPQ guidelines offer no leeway for either the employer or the employee. Regardless of the originating circumstances, only one course of action was possible – vacating the workplace. 

Under these circumstances, the employer is under no duty to pay the complainant during her absence from the workplace, in accordance with the rule set forth at Article 2085 of the Civil Code of Quebec, which provides that the right to receive wages is contingent upon the performance of work. 

Association des travailleurs du préhospitalier (ATPH) v. Coopérative de techniciens ambulanciers du Québec (CTAQ) 2021 QCTA 303

Practical tips

Unless expressly provided in a collective agreement, employment agreement, or a ministerial Decree, an employer is under no duty to remunerate an employee during his or her period of mandatory self-quarantine while awaiting a result of a COVID-19 test. As indicated by the arbitrator ruling on the matter, the payment of wages normally hinges upon the performance of work. This goes to the very essence of a labour agreement. 

That being said, and even in the absence of this duty, certain employers have taken the initiative of offering their employees certain ways to mitigate the consequences of such quarantines, to the extent possible (use of cumulative sick leave, cumulative overtime etc). This is an interesting compromise particularly considering the volatile cycles of the pandemic and its consequences both for employers and employees. 

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