Friday, April 9, 2021
I (Rick Bales) have just posted on SSRN my article (forthcoming PSU's Arbitration Law Review) Novel Issues in Canadian Labour Arbitration Related to COVID-19. Here's the backstory; the abstract is below:
In late spring or early summer 2020, Penn State’s Arbitration Law Review asked me to write an article for their February 2022 symposium on arbitration & COVID-19. I happily agreed. I began in late 2020 by focusing on U.S. awards. However, publication of U.S. awards is fragmented among three for-profit legal publishers, and few established arbitrators submit their awards for publication. By contrast, by law all Canadian awards are submitted to the Provincial ministries of labor, and then they are published by CanLII, the database of Canadian law provided by the Canadian Legal Information Institute. Searching CanLII in January and February 2021 yielded far more COVID-related awards than all three American publishers combined.
Consequently, I started by looking at Canadian awards. American awards re now starting to trickle into the American databases. A follow-up article – which I am working on now – will survey American awards and comparatively analyze both the subjects and the outcomes of these awards as compared to the Canadian awards.
The COVID-19 pandemic of 2020-21 changed working conditions for millions of Canadians quickly and dramatically. Employers responded by requiring employees to quarantine, implementing workplace COVID policies, disciplining employees who violated those policies, changing work schedules, cancelling leaves or vacations, and furloughing or laying off employees. Unions have challenged many of these actions, raising a variety of novel issues that are now being resolved through labour arbitration. This article surveys those labour arbitration awards.