Over the past year, workplaces throughout the world have drastically changed the ways work is organized and performed to respond to the COVID-19 pandemic. Employers have had to quickly implement new and comprehensive workplace protocols to respond to the risk of the spread of COVID-19 in the workplace. These protocols are generally informed by public health guidelines and identify COVID-19 related risk factors which affect employees’ clearance to attend work and regulate what employees can do while in attendance. Employees and unions, and in particular frontline workers, have similarly been required to understand and work within a rapidly evolving landscape of workplace policies, public health advisories and government regulation.
There have now been a few arbitration decisions where a unionized employee’s failure to adhere to the employer’s COVID-19 safety protocols has resulted in discharge. This article will summarize three cases and offer some commentary regarding developing trends and discuss factors that ought to be considered in this developing area of law.