Mandatory teleworking during a pandemic: the exception remains employees whose presence is essential to maintaining the employer’s business
In a recent decision – Canadian Union of Public Employees, Local 1108 and CHU de Québec – Université Laval (union grievance), 2021 QCTA 187 – arbitrator Mtre Nathalie Faucher dismissed an application for a safeguard order filed by the Canadian Union of Public Employees (the Union) in an attempt to force the CHU de Québec (the Employer) to comply with Ministerial Order 2020-105 (the Order) so that the employees concerned could carry out their tasks remotely.
This decision is similar to a recent decision we discussed in a previous issue which dealt with Order-in-Council 689-2020, providing, among other things, that “when work may be carried out remotely, teleworking from a private residence or its equivalent [must] be given preference.”
On December 17, 2020, the Order established that all the employees of enterprises, organizations or bodies of the public administration who perform administrative duties or office work must continue to do so by teleworking, except employees whose presence is essential to maintaining the employer’s business. The Union filed the application for a safeguard order in the wake of this Order, since the Employer refused to let the medical secretaries and administrative agents perform their tasks remotely.
In this case, the Union alleges that the Employer is violating the Order which it claims is binding and should take precedence over the Employer’s management rights. However, the Employer alleges that the employees in question:
- cannot perform their tasks remotely due to computer and technical capabilities; and
- that their presence is essential to providing assured and continuous work.
Relying on the criteria for analysis recognized by the case law relating to safeguard orders, the arbitrator determined that:
- Apparent entitlement: at first glance, it is not a given that the employees in question have a clear right to perform their work from home, since the Order includes an important exception to teleworking. Pursuant to this exception, the Employer is not required to offer teleworking to employees whose presence is essential to maintaining its business, and each case is different.
- Serious and irreparable harm: while it is true that an increase in the number of contacts is likely to increase the chances of contracting COVID-19, the arbitrator noted that a person will not automatically contract the illness because he/she works in an office, especially since in this case, the Employer alleges that it has implemented protective measures. The arbitrator added that contracting COVID-19 will not necessarily cause irreparable harm since the effects of the illness vary from one person to another. Therefore, the alleged harm is hypothetical.
- Balance of convenience: Since both criteria were not met, the arbitrator did not analyze the balance of convenience.
Although the arbitrator dismissed the safeguard order, she still was of the opinion that the issue with respect to the “essential nature” of the employees’ position needed to be ruled on as soon as possible, at the hearing on the merits.
This recent arbitration decision sheds some light on an employer’s right to require their employees to be present when their work is considered essential to maintaining the business of the enterprise, where teleworking is mandated by the Quebec government as a health measure to combat the spread of COVID-19. However, it should be noted that the arbitrator’s decision deals only with the safeguard order. As Quebec maintains the health measures during the third wave, it will be interesting to see how this case evolves, especially, with respect to whether or not the employees’ position is determined to be essential.
The author wishes to thank Florence Picard, articling student, for her generous contribution to this text.
Megda Belkacemi, lawyer
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