We have been living with COVID-19 for almost a year now. It has been a year of uncertainty, problem-solving, and resiliency for everyone, especially for those in the workforce. With little direction, employers and employees alike have been left feeling fatigued, overwhelmed, and confused surrounding COVID-19 and occupational health and safety in their workplace. 

 At DriverCheck, we are frequently asked by employers: "Do I have the right to enforce mandatory COVID-19 testing on my employees?”

To help answer this question, we refer to the recent labour arbitration decision in Christian Labour Association of Canada v Caressant Care Nursing & Retirement Homes dated Dec 9, 2020. 

In this case, arbitrator Dana Randall was presented with Christian Labour Association of Canada’s (“the union”) challenge to Caressant Care Nursing & Retirement Homes (“the employer”) policy that all staff at its retirement home in Woodstock, Ontario be tested for COVID-19 once every two weeks. The policy being challenged involved the nasal swab test. A refusal to participate in testing would result in the employee being held out of service until they could complete testing. This mandatory requirement came from a request/recommendation for retirement homes from the Ontario government. A copy of the new policy was provided to all employees at the employers' long-term care homes and ten retirement homes. 

The unions' central submission was that the policy was an unreasonable exercise of its management rights, stating the employers' power to manage employee rights has limits. According to the union, those limits were breached with the introduction of mandatory COVID-19 surveillance testing. 

The submission relied on CEP, Local 30 v. Irving Pulp & Paper Ltd, supra. In that case, the rationale for random alcohol testing using a breathalyzer was that alcohol abuse in the workplace was not sufficiently made out to outweigh the harmful impact on employees' privacy rights.

The union disputed that a nasal swab every two weeks is an intrusion of an employee's privacy and a breach of their dignity. The union maintained the policy could not achieve its purpose, given that the nasal swab can only indicate that an employee does not have COVID-19 at the time of testing. The union suggested the policy is unnecessary and that the employer had adopted all recommended mitigation strategies resulting in no COVID-19 cases at the home. The union also stated the policy was unfair and incoherent because most people in the home were residents, and they were not being tested. 

The arbitrator rejected these arguments and dismissed the grievance, adopting Caressant Care’s position that the policy was reasonable given the following facts and circumstances:

1. Controlling COVID-19 infection is not the same as monitoring the workplace for intoxicants because intoxicants are not infectious.

2. Unlike drugs/alcohol, COVID-19 is novel. Public health authorities are still learning about its symptoms, its transmission and its long-term effects.

3. COVID-19 is highly infectious and often deadly for the elderly, especially those who live in contained environments.

4. Although the home had not had an outbreak, waiting for an outbreak to happen to take action is not a reasonable option.

5. If the employer were to only test employees who were symptomatic, they would miss a very large contingent of the spread of the infection in the community.

Finally, in weighing the privacy breach against the safety goals of the policy, the arbitrator found the employers policy to be a reasonable one. In his final statement, the arbitrator disagreed with the unions statement that the COVID-19 testing was being used as a limited surveillance tool, stating that a negative test may be of limited value to an individual employee tested but it is of high value to the home, and a positive test is of immense value to both the employee and the home. The arbitrator stood firm in his belief that a positive test leads to identification, isolation, contract tracing and most importantly combatting the spread of the COVID-19 virus.

In a publication written by Torkin Manes LLP regarding this arbitration decision, Thomas A. Stefanik, Partner and Head of Employment & Labour, and Shreya Patel, Associate in Employment & Labour, came to a conclusion that we found noteworthy.

They determined that “it remains to be seen if such tests, if mandatorily imposed by employers, will be challenged in non-healthcare settings by unions at arbitration or non-union employees in civil actions. With the upcoming winter months, and probable continuing high cases of COVID-19 in the community, and still likely months away from significant numbers of vaccinations, employers will be faced with continuing challenges as to how to manage the health and safety of their employees and workplaces.”

The evolution of COVID-19 testing methods and best practices continue to be fluid. As positive COVID-19 cases continue to rise across the country, each organization is challenged with keeping their workplace healthy and safe – and still feasible to operate. We encourage you to stay informed on new developments and engage with trusted advisors and legal representation. 

Nobody needs to be alone in this pandemic. Chances are others are experiencing the same challenges, so reach out to those in your network.

KRISTEN SALERNO

MARKETING COORDINATOR

My job as DC’s Marketing Coordinator is to show clients, partners, and the public that a healthier and safer world is possible.

With a background in Broadcast Journalism and a passion for videography, I help create brand content that is educational, engaging, and provides value to our clients.

When I am not working, you can find me up in Northern Ontario with my Husband, snowshoeing, fishing, or playing with our border collie/blue heeler named Merlin.