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CONSTRUCTION EMPLOYER’S COVID-19 TESTING POLICY UPHELD AS REASONABLE

Employers can implement COVID-19 testing as a condition of accessing the workplace in appropriate circumstances according to a recent decision from Arbitrator Robert Kitchen. The decision, which is available here, offers some welcome clarity for employers who have struggled to implement appropriate policies throughout the ever changing pandemic landscape.

Background

In February 2021, the employer implemented a Rapid COVID-19 Antigen Screening Program (the “Policy”) at a number of its construction sites. The program was implemented in conjunction with the Ontario Ministry of Health and required employees to submit to rapid testing to gain access to the worksite. The Employer determined which sites would be subject to mandatory testing on the basis of a number of factors, including: community spread and case counts, the size of the projects, risk level for workplace transmission, whether the project involved critical infrastructure, and client requirements.

The policy mandated the use of the Abbott Panbio (“AP”) test (which does not require a nasopharyngeal swab) administered by a qualified third party healthcare professional twice a week. On days where screening was not being performed, access to worksites was permitted only after showing evidence of registration to be screened on the next possible day. No personal health card information was taken or stored and best efforts were made to reassign employees to a non-testing site if they refused. Where no reasonable reassignment was possible, employees refusing the test were laid off.

In the 15-minute period prior to receiving the test results, employees were paid their normal rate. Requests for accommodation were addressed on a case-by-case basis. A number of additional health measures, including pre-screening questionnaires, distancing and increased cleaning and sanitizing were also implemented.

As of the day of hearing, 100,237 tests had been conducted with 179 positive results. Of those positive results, 118 were confirmed through additional testing. There were two apparent cases of COVID-19 transmission between non-bargaining unit employees at a worksite and the employer had four active workplace outbreaks as of May 2021 in Toronto.

The Decision

The Union challenged the unilateral implementation of the policy as an unjustified intrusion on bodily integrity and privacy rights of employees, which was unjustified given the number of other COVID-19 precautions in place. The Employer defended the Policy as reasonably necessary to mitigate the transmission of COVID-19 in the workplace, and ensure the health and safety of the workforce and the public.

Because it was unilaterally imposed, the Employer was required to show that the Policy was “reasonable” in the circumstances and struck an appropriate balance between the Employer’s legitimate interests and the competing rights of employees. In a unionized environment, that requires the policy to be:

• consistent with the collective agreement;
• clear and unequivocal;
• brought to the attention of employees prior to implementation;
• clear about whether a breach of the policy could result in discipline or discharge;
• consistently enforced; and
• otherwise reasonable.

Employers are also required to provide “clear and compelling evidence that there is a specific problem in the context of the specific workplace which cannot be addressed through less intrusive means.”

In upholding the policy, Arbitrator Kitchen noted:

• the various lockdown and stay-at-home orders in place in the City of Toronto;
• the designation of many construction projects as essential services where employees are subject to severe health and safety risks associated with COVID-19 transmission;
• the nature of the operations largely prevented social distancing;
• construction employees regularly move between job sites and employers;
• many other unionized employees working at the sites had been tested without grievances being filed;
• the Employer had experienced outbreaks at several job sites;
• the AP test was minimally invasive compared to the nasopharyngeal swab test and required no personal information be collected; and
• many other mitigation measures had been implemented.

Takeaways

While the decision provides some welcome support for the implementation of COVID-19 testing policies, not all policies and workplaces are created equal. Employers must be careful to take account of all relevant factors affecting their workplace prior to implementing a policy. Where proper social distancing is possible, case counts are low, vaccination rates are on the rise or there is no demonstrable spread in the workplace, testing policies may not be justified. Because these factors tend to change over time, policies should also make room for periodic review and amendment where circumstances change. Finally, it is always important to seek specific legal advice in respect of the viability of a testing policy at your particular workplace. As noted in the decision, the analysis of any given policy relies heavily on individual circumstances.

If you are considering implementing a COVID-19 related policy, the lawyers at CCPartners are here to help. Click HERE to access CCPartners’ “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law or contact any of our team members to answer you workplace questions.