Please note that this article was originally posted on May 28, 2021, but has since been updated to include a discussion of the Ellisdon Construction Ltd. v Labourers' International Union of North America, Local 183 decision released on June 10, 2021.
As the Government of Ontario continues to combat the COVID-19 pandemic, some Ontario employers have taken action to prevent the spread of COVID-19 in the workplace by introducing mandatory COVID-19 testing policies.
The issue of whether an employer can legally introduce a mandatory COVID-19 testing policy has been considered in at least three Ontario arbitration decisions: (1) Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada, 2020 CanLII 100531 (Randall); (2) Unilever Canada Inc. v United Food and Commercial Workers, Local 175 (Bloch); and (3) Ellisdon Construction Ltd. v Labourers' International Union of North America, Local 183, 2021 CanLII 50159. In each case, the labour arbitrator 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.
A more detailed overview of the decisions is set out below. For advice specific to your situation, consider contacting your regular lawyer at Rae Christen Jeffries LLP.
1. Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada (Randall) (“Caressant Care”)
In Caressant Care, the arbitrator upheld a policy requiring all staff at one of the employer’s retirement homes to be tested for COVID-19 once every two weeks by nasal swab. Employees who refused the test were held out of service until testing was completed. The arbitrator weighed the employees’ right to privacy and the invasive nature of the test against the employer’s objective of preventing the spread of COVID-19 in the retirement home, and found that the policy was reasonable in the circumstances because: (i) testing for COVID-19 is distinguishable from other forms of testing, such as drug and alcohol testing; and (ii) COVID-19 is highly infectious and often fatal for the elderly, especially those who live in congregate care settings such as a retirement home. The arbitrator further recognized the value that testing has for the retirement home, as it may assist with controlling the spread of the virus through early identification, isolation, and contact tracing.
2. Unilever Canada Inc. v United Food and Commercial Workers, Local 175 (Bloch) (“Unilever Canada”)
In Unilever Canada, the arbitrator upheld a mandatory COVID-19 testing policy requiring all staff at a food processing plant to be tested for COVID-19 once per week by nasal swab. Employees who refused the test were to be placed on a non-disciplinary unpaid leave of absence until testing was completed. The arbitrator weighed the employer’s objective of preventing the spread of COVID-19 in the workplace and the invasive nature of the test on one’s bodily integrity against the employees’ contractual, privacy and human rights and found that the policy was reasonable in the circumstances because: (i) notwithstanding that there was no evidence of transmission within the facility, some employees had tested positive, so it was prudent to err on the side of caution and permit the employer to take reasonable steps to prevent the spread of COVID-19 at the facility; (ii) the facility was subject to food safety regulations and employed as many as 310 individuals depending on the season, many of whom worked on multiple production lines, thereby increasing the risk of infection and/or transmission; and (iii) the potential benefits of having a COVID-19 testing program were well documented and, in this case, outweighed the interests of employees who refused the test.
3. Ellisdon Construction Ltd. v Labourers' International Union of North America, Local 183 (“Ellisdon Construction”)
In Ellisdon Construction, the arbitrator upheld a COVID-19 testing policy requiring all individuals attending affected job sites to be tested for COVID-19 twice per week by throat and bilateral lower nostril swab. The policy was implemented as part of a pilot program led by the Ontario Ministry of Health to assess the value of the Abbott Panbio COVID-19 Antigen Screening Test, which is a form of rapid testing. The employer selected which job sites would be subject to rapid testing based on several factors, including community spread and case counts, COVID-19 hotspot locations, the size of the project, the risk-level for workplace transmission, whether the project involved critical infrastructure, and client requirements. Individuals who refused the test were denied access to the job site.
The arbitrator considered evidence regarding the current state of the COVID-19 pandemic in Ontario and the risks posed to the health and safety of workers and the public at large, and found that the policy was reasonable in the circumstances because: (i) COVID-19 posed an extraordinary threat to the health and safety of the workers, as some job sites had up to 500 workers, many of whom worked side-by-side over extended periods of time; (ii) workers regularly moved between job sites, thereby increasing the risk of transmission; (iii) members of several other trade unions had been tested on the employer’s job sites without complaint; (iv) significant efforts were made to protect the privacy and dignity of the workers tested; and (v) the Antigen Screening Test was minimally invasive as compared to a laboratory-based PCR test and, therefore, the objective of preventing the spread of COVID-19 in the workplace outweighed individual privacy interests.
Although it remains to be seen whether introducing a mandatory COVID-19 testing policy would be a reasonable health and safety measure in all workplaces, these decisions provide helpful insight into how arbitrators will interpret COVID-19 testing policies and balance workplace safety against employees’ contractual, privacy and human rights going forward. In all likelihood, mandatory testing policies are more likely to be upheld in settings where employees experience frequent and close contact with co-workers or clientele, thereby putting them at greater risk of infection.
As with any mandatory policy introduced by an employer in the unionized context, in order for a mandatory COVID-19 testing policy to be enforceable, the policy must be:
- consistent with the applicable collective agreement;
- clear and unequivocal;
- brought to the attention of the employees prior to employer action based on the policy;
- clear that a breach may result in discipline (this fact must also be brought to the attention of the employees in advance); and
- enforced consistently by the employer following its introduction to the workplace.
Employers seeking to adopt a mandatory COVID-19 testing policy will also have to consider how to balance employees’ privacy and human rights prior to implementing a policy. For more general information on privacy and human rights considerations, see the discussion in our previous post on mandatory COVID-19 vaccination policies here.
Employers should also consider taking the following steps prior to introducing a mandatory COVID-19 testing policy in the workplace:
- Review the employees’ employment contract(s) or collective agreement(s) and any applicable legislation to ensure that the policy is not inconsistent with same.
- Evaluate and weigh the objective evidence available regarding the health and safety risks posed by COVID-19 against employee human rights and privacy interests.
- Consider whether mandating COVID-19 testing would be a reasonable measure in the particular workplace, or whether less intrusive alternatives could be appropriate.
- Ensure that employees will not be required to choose between testing or losing their job (even if they are unable to work for a period of time as a result of refusing the test).
- Determine how human rights accommodation requests will be addressed.
- Consider how employees’ personal health information will be safeguarded and destroyed when it no longer needs to be retained by the employer.
Employers who do choose to implement a mandatory COVID-19 testing policy should review the policy on an ongoing basis to determine whether it continues to be reasonable in light of current public health guidance.
We will continue to monitor workplace related COVID-19 developments and provide further updates on this issue.