Sunday, November 8, 2020

Biweekly COVID-19 Testing Ruled Reasonable

Arbitrator’s ruling indicates employers have significant latitude to take necessary steps to control COVID-19 in the workplace

By Peter Vlaar, CLAC Ontario Legal Counsel

Is it reasonable for an employer to require their employees to undergo a COVID-19 test every two weeks as a condition of employment? A recent labour arbitration decision pertaining to a CLAC grievance has confirmed that it is.

The case involves Caressant Care Nursing & Retirement Home in Woodstock, which has implemented a regime of mandatory biweekly testing for all of its staff since the spring of 2020. This was done in response to a memo from the Ministry for Seniors and Accessibility recommending that all retirement homes begin such testing.

While the testing was made mandatory by the employer for the laudable goal of controlling COVID-19, it was questionable whether that was in fact being accomplished. Given that residents were not being tested, the test only showed staff who did not have COVID-19 at the time of testing, and significant PPE measures and protocols were already being implemented.

Thus, when the employer began holding staff out of service for noncompliance with the testing, CLAC challenged the reasonableness of the policy by filing a policy grievance.

The question put to the arbitrator was whether implementing such a policy of testing was a reasonable exercise of management rights. CLAC’s submission was that it was not because it was an intrusion of employee privacy and dignity that was not sufficiently justified.

Such intrusions are justifiable in circumstances of tangible risk, such as an employee being symptomatic for COVID-19 or the home being declared by the local Public Health Unit to be in outbreak. But neither of those were present in this case.

Further, because the retirement home residents (who come and go from the home as they please) were not being tested, the testing regime was not truly accomplishing what it purported to accomplish, namely, monitoring the spread of COVID-19.

Unfortunately, the arbitrator did not agree with CLAC’s arguments. He said, “In my view, when one weighs the intrusiveness of the test—a swab up your nose every 14 days—against the problem to be addressed—preventing the spread of COVID in the home—the policy is a reasonable one.”

What this decision tells us is that employers have a significant amount of latitude in taking steps necessary to control COVID-19 in the workplace. This case involved a retirement home (whose residents are generally less vulnerable than those in long term care), which indicates that it is not just the most vulnerable workplaces where policies like this can reasonably be implemented.

Controlling COVID-19 is a very important task, and the responsibility to participate in that task is shared among employers, employees, and unions alike.

While the situation in the province has worsened significantly since CLAC advanced this hearing, we will continue to monitor the activities of employers closely across sectors to ensure that their powers are properly kept in check, while also working with them in accomplishing our shared goal of keeping members safe.

Biweekly COVID-19 Testing Ruled Reasonable

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