It has been one whole year since we have started grappling with the COVID-19 pandemic in Canada. The spread of the virus has required that many employers ensure that any employee who could work from home, would work from home. Although, we are now looking at a possible end to the pandemic, thanks to vaccines that seem to be effective in protecting against the virus, we’re not there yet. Consequently, many employees continue to work from home. But for those employees who cannot work from home, the question is whether their employer can mandate that the employee get COVID-19 testing. The answer is a possible yes, and the likelihood, that employees must be tested increase if they work in the healthcare or geriatric fields. A recent arbitration decision pertaining to a retirement home validated one employer’s requirement for regular COVID-19 testing.

Employer Required Staff Who Refused Testing to Wear Full PPE

In this case, a unionized workplace, a retirement home, required that employees get bi-weekly testing for COVID-19. Management also required that staff provide them with proof of testing. The retirement home paid employees for one hour of work to cover the time spent on testing. Some employees communicated that they were not willing to undergo the surveillance testing. Management recognized this, however, staff unwilling to be tested were required to don full personal protective equipment for their entire shift. The employees’ union filed a grievance regarding the mandatory testing.

Can an Employer Implement a Rule Without a Union’s Assent?

Relying on a Supreme Court of Canada decision, the union put forth an argument made in an alcohol testing case. In that case, rules from another case were endorsed, which held that a rule introduced by the employer without the union’s assent could give rise to disciplinary action only if the rule met the following factors:

1. The rule was consistently enforced by the employer since the beginning;
2. The rule was consistent with the collective agreement;
3. The rule was reasonable;
4. The rule was clear and unequivocal;
5. The rule was brought to the attention of the employee(s) affected before the employer attempted to act on it; and
6. Where the rule was invoked to justify discharge, the employee was notified that a breach of the rule could result in discharge.

The arbitrator found that the above analysis was valid in this case. It was valid, because the issues of consequences for an employee’s failure to participate in the testing were present here, and those issues of consequence were disciplinary. However, the arbitrator still dismissed the grievance.

Circumstances Necessitating Testing Outweighed Any Privacy Concerns

The arbitrator found that even though the union’s reliance on alcohol and drug testing was a good starting point for the analysis, alcohol testing was not the same thing as testing for COVID-19. That is because COVID-19 is an infectious disease and monitoring for COVID-19 is not on the same level as monitoring for alcohol and drugs. Furthermore, testing positive for drugs or alcohol had different consequences than testing positive for COVID-19.

The arbitrator found that privacy intrusion was the most important argument here. There was a similar type of privacy intrusion in both cases. However, the need for COVID-19 testing and the need for drug and alcohol testing was not the same.

Quoting well-known American immunologist, physician and scientist, Dr. Anthony Fauci, the arbitrator made the point that COVID-19 was a highly infectious disease. Additionally, this disease was often deadly for the elderly, therefore, testing of many was important, because there were many asymptomatic cases.

The arbitrator also strongly disagreed with the union regarding characterizing testing as a “limited surveillance tool”. While a negative test may be of limited value, a positive test leads to isolation, identification and using available tools to combat the spread of the virus. Finally, when one weighed the intrusiveness of the test with the problem to be addressed, the policy was a reasonable one.

For people wanting to work from the office, COVID-19 testing could potentially become mandatory, especially if they work in health services or with a vulnerable group, in order to prevent the spread of the virus. Another important and complex topic regarding COVID-19 and employment law is whether an employer can require employees to be vaccinated against COVID-19. The latter topic we likely won’t know the answer to until the first few test cases arrive. Employers indeed face a lot of questions regarding their responsibility for the workplace during the pandemic. It is prudent to consult an employment lawyer when exploring those issues.

For advice on 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.