Mandatory Rapid COVID-19 Testing Policy – Upheld by Arbitrator

By Ronald Minken and Tejpreet (Tanya) Sambi

The Ontario Government has permitted Employers to administer Rapid COVID-19 Antigen tests at their workplace. In a recent Ontario Arbitration decision, an arbitrator found that a Mandatory Rapid COVID-19 Antigen Screening Program (Policy) was reasonable, and upheld the mandatory policy.

In EllisDon Construction Ltd. v. Labourers’ International Union of North America, Local 183, 2021 CanLII 50159, the employer, a construction and building services company, required its employees to take a COVID-19 test prior to attending specific construction worksites. The test was administered by a third-party healthcare professional, employees were paid for the time they took to have the test performed, no medical information was collected either by the healthcare professional or the employer, the test was a lower nostril swab (less invasive than the deep nostril swab), and no one was permitted to observe the test being administered. The only information collected by the employer was the name and contact information of the employees and was disclosed to the healthcare professional and the employer’s management team in the event that the employee tested positive.

Pursuant to the policy, if the employee refused to submit to the test, and there were no alternative job sites that the employee could be assigned to, then the employee was to be laid-off.

Labourers’ International Union of North America filed a grievance against EllisDon Construction Ltd. on the basis that the policy was a breach of the collective agreement and that it was an unreasonable exercise of management rights.

The Arbitrator found that in this particular workplace, the employees could not maintain six feet of distance (given the nature of the work), the risk of spreading COVID-19 was high, significant steps were taken to protect the privacy rights of the employees who were being tested, the test was minimally invasive, and there was no evidence that any of the other protective measures (such as the use of PPE, hand sanitization stations, etc.) had significantly reduced transmissions or that all employees were working in an “open air” environment (i.e. outdoors).

Accordingly, the Arbitrator found that the policy’s objective of preventing the spread of COVID-19 outweighed the minimal intrusiveness of the test and therefore, the policy was reasonable.

Takeaways on Rapid COVID-19 Testing

If an employer wishes to implement a mandatory Rapid COVID-19 antigen test policy, then they should keep in mind the following recommendations for doing so:

1. Offer alternatives to testing (i.e. allowing them to work from home, work in an area where social distance is achievable)
2. Have a trained professional conduct the Rapid COVID-19 testing
3. Only seek necessary information from an employee (i.e. do not request any medical information, such as a health card, and only request their name and contact information to ensure they can be contacted if they test positive)
4. Explain how test results will be used and disposed of (i.e. how will a positive test result be used); and
5. Ensure confidentiality (i.e. make sure an employee is in a private area when the test is being administered)

The Arbitrator did note that it was not possible to socially distance at the workplace (given that it was a construction site) and the transmissibility of COVID-19 was high (again, given that it was not an open area and social distancing was not achievable) when assessing whether the policy was reasonable. Accordingly, if your workplace is one where social distancing is possible and/or transmissibility is low, because you can operate in an outdoor place or in an indoor location that allows for social distancing, then a policy requiring Rapid COVID-19 testing may not be reasonable.

Should you have specific questions for your situation with respect to the COVID-19 testing at your company or any other workplace issue you require legal guidance for, please contact us today or call us at 905-477-7011 for assistance prior to taking any steps that may expose you to legal liability.

At Minken Employment Lawyers, we can review the facts to recommend the best course of action to ensure your legal protection.

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Please note that this article is for informational purposes only and does not constitute legal advice.

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