On April 25, 2021, Labour Arbitrator Jules Bloch issued a decision in Unilever Canada Inc. v United Food and Commercial Workers, Local 175, which involved a dispute regarding the enforceability of a mandatory COVID-19 testing policy implemented at a food processing plant operated by Unilever Canada Inc. (“Unilever”) in Simcoe, Ontario.
Arbitrator Bloch upheld the policy as a reasonable measure to protect the health and safety of employees from the risks posed by COVID-19 in the workplace. The decision provides helpful insight into how arbitrators will interpret mandatory COVID-19 testing policies and the balance between employee rights and workplace health and safety going forward.
With the recent rise in COVID-19 case numbers across Ontario and evidence of community spread in Haldimand-Norfolk County where the Town of Simcoe is located, Unilever advised the Union that it would be introducing a mandatory COVID-19 testing policy effective April 19, 2021 for all employees working at the plant, including its unionized employees.
The key elements of the policy were as follows:
- All employees were required to undergo COVID-19 testing once per week by nasal swab.
- The test was a “rapid antigen test” conducted on-site by a third-party contractor.
- The DNA sample collected would be used only for the purposes of COVID-19 testing and then disposed of in front of the employee.
- Employees who refused the test would be placed on a non-disciplinary unpaid leave of absence.
- Employees who tested positive for COVID-19 would be reported to Public Health and sent home to self-isolate pending further testing.
- Employees with a confirmed positive test would be placed on sick leave.
- Employees held out of service due to a false positive or potential workplace exposure would be paid for their time spent in isolation.
- Employees unable to take the test due to medical restrictions would be accommodated by providing them with an alternate form of testing.
Arbitrator Bloch found that the policy was reasonable in the circumstances, notwithstanding that there was no evidence of transmission within the facility, as some employees employed at the plant had tested positive, such that it was prudent to err on the side of caution and ensure that the employer was permitted to take reasonable steps to prevent the transmission COVID-19 in the workplace.
The decision is the second Ontario arbitration decision to find a mandatory COVID-19 testing policy to be enforceable.
For advice specific to your situation, consider contacting your regular lawyer at Rae Christen Jeffries LLP.
We will continue to monitor workplace related COVID-19 developments and provide further updates as information becomes available.
Rae Christen Jeffries LLP