April 15, 2021
To: All Members
Re: Decision in Sick Leave Policy Grievance (forced use of sick leave for COVID-19 symptoms)
In July 2020, the Association filed a policy grievance (and subsequently went to arbitration) in relation to the requirement that teachers use accumulated sick leave when directed not to attend work due to COVID-like symptoms. The Association has received a decision from the arbitration panel on this matter. The information below outlines the issues related to, and impact of, the decision.
Does the direction to stay home from work when experiencing COVID-like symptoms require teachers to use sick leave?
The arbitration panel found that the requirement to stay home did not obligate teachers to use sick leave. In fact, it was held that in such a situation where a teacher is otherwise able to carry out their normal duties, sick leave is not available. COVID-like symptoms in these circumstances constitute an illness, but not an illness that causes an inability to work if teachers feel otherwise well enough to do their jobs. The employer cannot force teachers to take sick leave in circumstances where the collective agreement does not permit that.
Is leave under section 76 of the Schools Act available in such circumstances?
The NLTA proposed that teachers required to stay home in such circumstances could be placed on paid leave under section 76 of the Schools Act, 1997. Section 76(f) has been used in cases where the school board had a concern about an employee’s health and required a teacher to undergo a medical examination(s). As a matter of practice, while awaiting the outcome of that medical examination, teachers have been provided paid leave, not sick leave. This position was rejected by the arbitration panel.
Is the school board/Department required to provide board approved paid leave pursuant to clause 18.09 of the Provincial Collective Agreement (Labrador West Collective Agreement clause 29.09) or Ministerial discretionary leave under clause 18.11 (Labrador West clause 29.11)?
No order was made by the arbitration panel.
The Panel found that such paid leave would be an option in these cases but declined to order that this leave be provided. The Panel found that since such leaves are discretionary, it could not order the school boards or the Minister to exercise that discretion. The school boards or Minister would have to agree to do so.
Effect of Decision
The decision is, from an overall policy perspective, a positive one. While the practical outcome of the decision in terms of the impact on individual cases remains to be seen, the NLTA went to arbitration with the goal of getting a decision to say that requiring teachers to stay home due to COVID-19 symptoms when otherwise able to work is not sick leave. That has been achieved.
Given that there was no order with respect to paid leave, it remains unclear what paid leave teachers are entitled to access in such circumstances.
The NLTA does not oppose the school boards’ “stay-at-home” rule in the context of a global pandemic and Public Health emergency. However, your Association continues to take the position that it is unreasonable for an employer rule to force teachers to stay home and not come to work when they are able to fulfill their duties without providing compensation. The disposition of the individual grievances filed to date remains a live issue, and discussions are ongoing on these matters. Teachers who are considering filing future grievances on this issue should contact an Administrative Officer in Programs and Services for advice via email@example.com.
The Association will provide updates, when available, in relation to any further significant developments on this matter.
As always, NLTA members seeking advice/assistance on specific matters related to their individual circumstances should contact the Association via firstname.lastname@example.org.