A recent Nova Scotia labour arbitration decision suggests that it can be permissible for employers to prohibit their employees from working for other employers during the COVID-19 pandemic, at least in certain circumstances.
CUPE, Local 3513 v Breton Ability Centre is one of the first Canadian decisions to consider the reasonableness of a “single employer” policy amid the pandemic. In particular, the arbitrator found that a policy implemented by an operator of community homes, which temporarily prohibited employees from working for other employers, was a reasonable exercise of management powers.
Background and Facts
The employer operated community homes which provided adult residence and rehabilitation services for individuals with various intellectual and physical conditions.
On April 8, 2020, the employer implemented a temporary policy requiring its employees to only work for one employer in order to reduce the risk of community spread of COVID-19 arising from the movement of staff (the “Policy”).
Notably, the Policy was implemented approximately one month after COVID-19 was detected in Nova Scotia, and two days after the province’s Chief Medical Officer issued a directive for long-term care facilities which stated that “in general, staff from outbreak facilities must not work in non-outbreak facilities” (the “Directive”). While the employer was aware that the Directive did not apply to its community homes, it considered the Directive to be instructive, given that it applied to workplaces similar to its own.
The employer consulted with union executives about the Policy prior to implementing it through a brief, in-person discussion with its president and follow-up emails. Through these interactions, the union mistakenly believed that the Policy was a mandatory measure under the Directive. As such, the union did not grieve the Policy until nearly a month later when it realized this was not the case.
The arbitrator found that the Policy was a reasonable measure, despite that the employer had breached the collective agreement by failing to meaningfully consult with the union about the Policy’s implementation in the manner required by the collective agreement. In coming to this finding, the arbitrator considered long-established, guiding principles which provide that rules unilaterally introduced by an employer without the agreement of a union must not, among other things, be unreasonable or inconsistent with the collective agreement.
The arbitrator found that the Policy was a reasonable measure based on its temporary duration and the limited knowledge about COVID-19 available when the Policy was implemented. The arbitrator noted that, at that time, there was considerable public consensus that “community spread was a problem” and that those most at risk were those who lived or worked closely with others over long periods of time. In this respect, the Policy was justified by its goal of preventing community transmission among staff and the vulnerable populations served by the employer.
Importantly, the arbitrator expressly did not decide whether a similar policy would be found to be reasonable during a subsequent wave of the pandemic or under different circumstances. The arbitrator repeatedly emphasized that the Policy was imposed at the commencement of Nova Scotia’s first wave and that knowledge of how to prevent, manage or limit the transmission of COVID-19 has since “evolved”.
Finally, the arbitrator found that, despite the reasonableness of the Policy, the employer had breached the collective agreement by failing to follow the procedures and requirements for meaningful consultation with the union set out therein. However, as the union failed to establish that the Policy would not have been implemented if appropriate consultation had taken place, the only remedy granted by the arbitrator was a declaration that the employer had breached the collective agreement. In all other respects, the grievance was dismissed.
This decision confirms that an employer may, in certain circumstances, implement policies prohibiting employees from working for another employer during the pandemic. These policies are more likely to be upheld where information about COVID-19 transmission supports the reasonableness and effectiveness of the policies, and/or where the employer is operating in a high-risk sector where staff are working with vulnerable populations.
Notably, government mandated single employer requirements have varied among different Canadian jurisdictions, which may impact whether such policies will be permissible in any given jurisdiction. For example, regulations in Ontario currently prohibit employees from working for more than one long-term care home, retirement home, or health care provider, regardless of whether such restrictions violate a collective agreement. As such, it is nearly certain that a single employer policy for Ontario employers operating in those sectors would be upheld. However, it remains to be seen whether single employer policies would be permissible in settings outside of sectors to which similar requirements or directives apply.
Crucially, employers in non-unionized contexts should also bear in mind that they may face exposures related to constructive dismissal if they implement a single employer requirement where it is not required by law and is not agreed to by employees. This is because the courts have yet to address whether this requirement may constitute a substantial unilateral change to employment which employees may treat as a dismissal.
Finally, where employers do implement a single employer policy, they should ensure that it is minimally intrusive, makes its purpose clear, and is clearly communicated to employees. Employers subject to a collective agreement should also ensure that they adhere to all relevant requirements in the collective agreement, such as a requirement to consult with the union.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.