In an important decision for employers, an arbitrator found that a unionized employee's failure to follow well-known public health guidelines to reduce the spread of COVID-19 was cause for termination.
In late March 2020, Garda Security Screening ("Garda") communicated public health guidelines to prevent the spread of COVID-19 to all employees. Under the guidelines, individuals who were waiting for COVID-19 test results were clearly told to isolate. They were not to report for work if they had gone for a COVID-19 test and were waiting for the results. All Garda employees were made fully aware of the isolation requirement.
On April 12, 2020, the employee told Garda that she had tested positive for COVID-19. In accordance with public health guidelines, Garda identified all other employees and parties who had been in close proximity with her. The employee was placed on a leave of absence.
The employee was asked to prepare a written statement about her actions. The employee reported that:
- she went to her family doctor because she was feeling ill;
- she went for a COVID-19 test on April 6th on the advice of her family doctor;
- she did not work between April 6th – 8th while waiting for her COVID-19 test results;
- she was informed that she had tested positive on April 12th; and
- no one told her, and she was not aware, that she was required to self-isolate while waiting for her test results.
Following an investigation, Garda determined that, contrary to the employee's statement, she had worked on April 6th. Garda met with the employee on April 23rd. The employee said that she did not tell Garda that she had gone for the test and attended work because she did not feel sick. Garda terminated the employee for cause on the basis that she violated public health guidelines and put her colleagues and the general public at risk.
The arbitrator found that Garda took all necessary precautions to ensure its employees were aware of public health guidelines. The arbitrator also found that the employee was aware of those guidelines. There was no ambiguity in the guidelines at that time: individuals who were waiting on the results of a COVID-19 test were required to isolate until they got the results.
The arbitrator noted that the employee's justification for returning to work (because she did not feel sick) was contradicted by her own written statement and logic. As acknowledged in the decision, the COVID-19 pandemic was the biggest topic in the news and in public conversations. Given the wall-to-wall reporting on COVID-19, the employee had to have been aware of the consequences of spreading the virus if she was infected.
The arbitrator concluded that the employee's actions were a clear violation of both her employer's and public health guidelines. Her claim of not feeling sick was irrelevant. She was required to isolate for the health and safety of others. Her conduct put countless others at risk of illness or death. She showed no remorse for what she did or concern about the possible consequences of her having returned to work before knowing the results of her test.
The arbitrator found that the employer was justified in terminating the employee for cause.
Employees who fail to follow public health guidelines put their colleagues and the public at risk. Employers who have ensured that employees are aware of public health guidelines and have told employees of the expectation to follow those guidelines may be justified in disciplining or terminating employees who violate them.
Employers should contact legal counsel before disciplining or terminating an employee for failing to follow health guidelines. If you need advice on this subject, please contact the author or your regular Fasken lawyer.