United Steelworkers Local 2251 has successfully defended the right of an apprentice machinist from the Michigan Sault to cross the International Bridge to work at Algoma Steel without the usual mandatory two weeks of self-isolation.
In a decision issued this week from McKellar, Ont., arbitrator Norm Jesin reserved the right to revise his order if pandemic conditions deteriorate or improve on either side of the border.
"The population of Chippewa County is approximately 40,000 people, whereas the population of Algoma District is 115,000 people – nearly three times the population of Chippewa," Jesin said.
"It is fair to say therefore that the rate of infection in Chippewa is approximately three times that of Algoma at the time that evidence was presented on this point. It is conceded, however that the situation is fluid and can change on either side of the border quickly."
"It should be added although the COVID situation is far better in Michigan than it is in other states such as Florida or California, the number of cases overall in Michigan is approximately double that of Ontario although the overall population of Michigan is approximately two-thirds that of Ontario."
The unusual case involves a man with dual Canadian and American citizenship who currently lives in Michigan's Chippewa County.
A third-year machinist apprentice who's worked at Algoma Steel since 2017, the man crosses the International Bridge to attend work at the start of his shift, returning to Michigan at the end of each day.
He has two children, aged six and 10.
"He is not married at the present time. As a result of a custody order he has his children on his days off. His children are not entitled to cross the border to be with him while he is Canada," the arbitrator said.
Then, COVID-19 arrived, with the federal government ordering individuals entering Canada from the United States to self-isolate for 14 days.
Regulations enacted under the quarantine order included exemptions for certain categories of persons who need to cross the border regularly to attend their normal place of employment.
The Chippewa County man fell within those exemptions, but Algoma Steel introduced its own rules requiring employees who cross the border to self-isolate for 14 days.
This threw the man's working arrangements into irreconcilable conflict.
If he wanted to continue working through the pandemic, he needed to take up residence in Canada.
In other words, he had to choose between maintaining access to his children or continuing to work at the Sault steelmaker.
"He cannot do both as long as the employer’s policy is being applied to him. He has chosen to maintain his custody arrangement with his children and has therefore been unable to work since March 17, 2020," arbitrator Jesin said.
In three days of hearings held under Ontario's Labour Relations Act, the company argued that it was obliged to take every reasonable precaution to protect its employees by keeping the steel mill COVD-free.
Algoma Steel acknowledged the man's difficult family situation, but said it was unable to accommodate it without undue hardship.
The arbitrator disagreed, indicating there are ways the man's ability to work at the mill while living in Michigan could have been accommodated.
For example, he could be placed under more rigorous masking or special social-distancing protocols, or required to undergo regular COVID-19 testing or ordered to not travel to designated coronavirus hot spots in the United States.
He could also be assigned to jobs and to shifts that would minimize the safety risk.
Jesin noted that Algoma Steel already has special rules for 'outsiders' visiting the plant.
"For example, there are strict protocols for delivery drivers about where they can and cannot be while onsite. Essentially, they are required to stay with their loads and not able to enter the plant."
The Steelworkers union asked for back pay for the employee.
"My award is in part based on the state of affairs as they exist now. It is not yet clear to me to what extent damages may be appropriate for a policy that was implemented in March," the arbitrator said.
Jesin left the back-compensation issue for the union and company representatives to resolve, indicating he was willing to assist if they can't come to an agreement.