The Importance of Employers Having Comprehensive COVID-19 Policies

Envirosystems Incorporated v. Jeremy Arnot

In the age of COVID-19, employers are understandably concerned about the health and safety of their employees. They do not want COVID-19-positive workers infecting coworkers, shutting down their businesses, and harming the integrity of their brands. They also want to shield themselves from any potential liability to clients, customers, and employees who are infected with COVID-19 due to their lack of COVID-19 safety diligence.

But what happens when well-meaning employers take steps against potentially infected employees in an effort to keep both customers and employees safe?

In Terrapure Environmental (Envirosystems Incorporated) v International Union of Painters and Allied Trades, District Council 138 (Jeremy Arnot – Termination), a British Columbia arbitrator confirmed that employers likely cannot terminate (unionized) employees for violation of their COVID-19 protocols if they have no comprehensive COVID-19 policy in place for those employees to follow.

Overview of the Case

On December 9, 2020, employer Terrapure Environmental operating as Envirosystems Incorporated (Envirosystems), an industrial and waste management company, terminated the employment of one of its unionized British Columbia employees, Mr. Jeremy Arnot, for just cause, with no severance, for failing to follow COVID-19 safety directions.

LEARN MORE
Severance pay in British Columbia

On November 25, while on a work trip in Ladysmith, British Columbia, Mr. Arnot ordered chicken wings from a local restaurant. After eating the wings, Mr. Arnot became quite ill with diarrhea. The next day, he left the job site at the direction of his supervisor because of his ongoing gastric troubles. He later advised one of his bosses, Mr. Bowen, that he had diarrhea from eating bad chicken wings and therefore did not have COVID-19.

Mr. Bowen subsequently texted Mr. Arnot, directing him to remain in his room, call 811, and get a COVID-19 test. Upon later learning that Mr. Arnot had left his room, Envirosystems made multiple unsuccessful attempts to contact him (the “Arnot Incident”). Mr. Arnot later admitted lying about travelling to Nanaimo to get a COVID-19 test. He also claimed that he tried calling 811 but could not get through, so took an online COVID-19 self-assessment test which said that he did not need to tested for the virus.

Following an Envirosystems investigation of the Arnot Incident, Envirosystems terminated his employment for insubordination for his failing to follow Mr. Bowen’s directions. Mr. Arnot grieved his dismissal in front of an arbitrator, who reinstated his employment and ordered the Envirosystems to make him whole for his losses less a five-day suspension for lying to his employer.

The Arbitrator’s Decision

Arbitration is not law. It occurs when two parties agree to have a third-party, called an arbitrator, render a binding decision on a matter in dispute. Those parties often elect to arbitrate their disputes because arbitration is much faster and therefore much cheaper than a traditional legal claim. Arbitrators tend to be former lawyers.

For that reason, their decisions on certain legal topics can inform general legal thinking on those topics, both for unionized and non-unionized employees.

Here, the arbitrator ordered Envirosystems to reinstate Mr. Arnot’s employment and reimburse him for work time lost for two primary reasons:

1. It had no published COVID-19 policy in place to hold Mr. Arnot’s conduct to; and
2. Its resulting ad hoc COVID-19 actions towards Mr. Arnot were not rationally connected to his symptoms.

In other words, Envirosystems could not fire Mr. Arnot for his supposed violation of non-existent COVID-19 policies. How could he be insubordinate if its COVID-19 policies were not written down and communicated to Mr. Arnot? Note that the arbitrator found Mr. Bowen’s text message instructions to be internally inconsistent and therefore not violated by Mr. Arnot.

More importantly, the arbitrator held that an employer’s order that its employee get a COVID-19 test must be rationally connected to the employee’s symptoms. Here, Mr. Arnot had stomach troubles arising from consuming bad chicken wings. His gastric symptoms clearly did not correspond to the primary symptoms of COVID-19. Therefore, Envirosystems had no right to demand that he get a COVID-19 test. Had Envirosystems had a clear, science-based COVID-19 policy in place, its leadership may have known not to demand that Mr. Arnot get a COVID-19 test and then fire him for failing to do so.

READ MORE
• COVID-19 Workplace Red Flags
• Can My Employer Mandate the COVID-19 Vaccine?

Takeaway for for Employers

COVID-19 doesn’t justify invasion of privacy

While not legally binding on employers, this decision again highlights the difficult pandemic predicament employers are in: they MUST keep their employees and clients safe, and be seen to be actively attempting to do so; but they cannot overreach into their employees’ private medical lives absent a good reason for doing so. Nebulous illness symptoms unconnected to accepted primary COVID-19 symptoms will likely be legally insufficient to ground just cause employment termination.

Have clear policies

In addition, employers hamstring their own employment and policy enforcement options when they have no clear COVID-19 policies to hold their employees’ conduct to. As Envirosystems learned the hard way, such a lack of COVID-19 policy options can be very expensive for employers.

Takeaways for Employees

Follow COVID-19 guidelines

Employees must follow all reasonable employer COVID-19 policies. Failure to do so may result in enforceable (and therefore permanent) just cause termination.

Non-compliance may still result in severance

Employers cannot use COVID-19 as a catch-all justification to invade employees’ private medical information or order employees to take actions not required by their medical symptoms. If they do, employees terminated for subsequent non-compliance will likely be entitled to severance (or, in the case of unionized employees, reinstatement).

Contact an Employment Lawyer

At Samfiru Tumarkin LLP, we regularly help non-unionized employees in BC, Alberta and Ontario who, like Mr. Arnot, have been terminated for COVID-19 infractions, get severance and fair compensation for their lost jobs.