Despite the recent and ongoing easing of restrictions in various provinces, COVID-19 continues to be a factor across Canada. Employers are following strict government protocols, laws, and regulations to keep their employees, clients, and customers safe. However, there are many grey areas when it comes to figuring out how to balance an employer’s duty to keep their staff safe, and employees’ rights and freedoms at the workplace. A recent labour grievance is an example of such a grey area.

The Rapid COVID-19 Antigen Screening Program

The Ontario Ministry of Health introduced a Rapid COVID-19 Antigen Screening Program as part of a pilot program to enable employers to improve safety measures in the workplace. In the case at hand, the employer, a general contractor overseeing various mid-rise residential construction projects, decided to implement this program in February of 2021. The employer hired a contractor to construct certain concrete formwork. The employer’s and the contractor’s relationships with employees were bound by a collective agreement.

Employer Implements Mandatory Screening Program

Before gaining access to the worksite, employees were required to submit to the Rapid Antigen Screening Protocol at the job site twice per week. The employer had hired three external nursing firms to administer the testing, which took approximately 15 minutes per employee. The employees’ healthcare information was not taken nor stored during the testing and employees could refuse to submit to the test. However, if they refused, they would not be permitted to enter the worksite. If the employee’s test result was negative, they could access the job site, but if the result was positive, it kicked off the following series of events:

• The testing team would communicate the results to the individual, as well as the employer’s health and safety coordinator;
• The coordinator would notify Healthline and begin contact tracing;
• The local public health unit would be notified of the rapid positive test;
• The individual who had tested positive was required to undergo a lab-based polymerase chain reaction (PCR) test at a COVID-19 Assessement Centre within 24 hours to confirm the result;
• The individual was prohibited from accessing the job site, pending the outcome of the PCR test;
• The employee was required to self-isolate until results of the PCR lab test were available and inform their emploeyr of the result once it became available; and
• Any employees who had been in close contact with the COVID-positive employee would be required to self-isolate pending the results of the PCR test.

Union Alleges Violation of Collective Agreement

The employee’s union filed a grievance against the employer and the contractor, alleging that they had violated the collective agreement by implementing the rapid testing program. The union took the position that the testing was an unreasonable exercise of management rights and an unreasonable company policy or rule.

Arbitrator: Testing Policy Was Reasonable

The Arbitrator made several findings. First, consideration had to be given to the circumstances within the general population and in the construction industry specifically. The City of Toronto has been on lockdown or stay-at-home orders since November 2020. The Province of Ontario has also been on full lockdown since April 2021. These orders required numerous businesses to close or severely limit operations, however, residential construction is one industry that was deemed essential and allowed to operate as usual.

The employer’s testing program started as part of a pilot program led by the provincial government. The employer received the testing materials from the Ontario Ministry of Health and administered the testing in accordance with all applicable government rules and guidelines.

As an essential service, workers in the residential construction industry continue to put themselves at risk. COVID-19, which can spread through respiratory droplets, represents an extraordinary threat to the health and safety of these workers. Some of the job sites where the employer conducted testing had up to 500 workers who may work side by side over extended periods of time. Given the nature of the work and the size of the projects, employees did not and could not maintain social distancing. The Arbitrator also found that the employer had taken significant steps to protect the privacy of their employees.

The Arbitrator concluded that COVID-19 remained a threat to the public and those working for the employer. When the intrusiveness of the test was weighed against the objective of the testing policy, which was to prevent the spread of the virus, the policy was deemed to be a reasonable one.

Contact Grosman Gale Fletcher Hopkins LLP in Toronto for COVID-Related Employment and Labour Issues

Employers have a duty to keep their employees safe. The government has released many safety and protection laws and regulations for that purpose, both in general and related to the pandemic. As the situation changes, it can be difficult to assess how far employers should go to protect their employees while balancing individual rights.

For advice on employee rights, employer liability and other employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.