Rising-scale COVID premium: a landmark decision
April 3, 2023
The APTS has won a first significant victory against the CPNSSS (the management bargaining committee for the health and social service sector) in various legal challenges to the application of ministerial orders related to COVID-19. On March 16, arbitrator Éric Jan Zubrycki ruled that the employer had acted in a discriminatory manner towards a CISSS des Laurentides employee who held a full-time position in a CHSLD and was gradually returning to work on a part-time basis following an accident.
Ministerial orders 2020-035 and 2020-044 provide for a rising-scale premium of up to $1,000 per month for employees working full-time in some settings, including CHSLDs. If an employee is absent for certain specified reasons (including annual vacation leave, a statutory holiday, union leave time, or an isolation period), they are still eligible for the premium in proportion to the hours they have actually worked. An employee absent for any other reason cannot obtain the premium. The employer therefore refused to give the rising-scale premium to the employee who was gradually returning to work, because she did not meet the criteria for eligibility – she was not working full time – and her reason for being absent was not on the list of reasons ensuring eligibility for the premium in proportion to hours worked.
The APTS argued that the employer was acting in a discriminatory manner by refusing to give the employee the premium in proportion to the hours she had worked, and that the employer was applying the ministerial orders in a manner that was discriminatory under the Québec Charter of Rights and Freedoms.
The arbitrator upheld the grievance, ruling that the employer had acted in a discriminatory way.
This confirms that including or excluding certain types of absence is an arbitrary decision that perpetuates stereotypes and prejudices in relation to disability, compromising the right to full and equal recognition and exercise of a person’s human rights and freedoms without distinction, exclusion or preference.
The arbitrator ordered the employer to give the employee a part of the rising-scale premium proportional to the hours she had actually worked in the designated setting during the period of her disability leave.
Other arbitration decisions on the application of COVID premiums are expected in the near future. Stay tuned – we’ll tell you all about them in the Fil@pts!
