Arbitrator upholds mandatory employee COVID testing

Jan 29, 2021

In a recent unreported labour arbitration award, Caressant Care Nursing & Retirement Homes and Christian Labour Association of Canada, the arbitrator, Dana Randall, upheld the decision that the employer’s mandatory COVID-19 testing policy was a reasonable exercise of management rights.

The case concerns an employer, a retirement home located in Woodstock, Ontario, which provides rental accommodation with care and services to residents who can live independently in a residence while receiving support. The home is provincially regulated by the Retirement Homes Regulatory Authority under the Retirement Homes Act, 2010 and employs staff to provide laundry services to residents of an adjacent nursing home.

In June 2020, the employer asked all employees to undergo COVID-19 nasal swab testing every two weeks, as part of the provincial government’s recommendations on COVID-19 testing in retirement homes. Consequently, all employees were paid for one hour of work and had their parking fees waived each time they underwent COVID-19 testing as stated by the policy. However, employees who failed to comply with the policy were required to wear full protective equipment or abstain from service until they got tested. Notably, the policy also included an accommodation provision, which stated that challenges to a nasal swab test could be addressed on a case-by-case basis.

The employees initially complied with the mandatory testing policy, but the union grieved that the policy constituted an unreasonable exercise of management rights. Therefore, it challenged the mandatory testing rules and drew parallels with case law on drug and alcohol testing in the workplace. Moreover, it cited the fact that there had been no COVID-19 recorded outbreaks in the workplace.

However, the arbitrator held that the employer’s mandatory COVID-19 testing policy was a reasonable exercise of the employer’s management rights and consistent with the provincial policy. In reaching this decision, the arbitrator highlighted the differences between the COVID-19 testing policy from drug and alcohol testing policies. Importantly, the arbitrator found that controlling COVID-19 in the workplace is not the same as monitoring the workplace for intoxicants, stating that “[i]ntoxicants are not infectious. COVID testing reveals only one piece of information: the employee’s COVID status. Being intoxicated is culpable conduct; testing positive is not.”

Importantly, the arbitrator found that the testing policy was not a “surveillance tool” or of limited utility, underscoring the importance of a positive COVID-19 test result in the workplace in preventing the spread of COVID-19.

As employers in various sectors attempt to implement health and safety policies to protect their employees and the public from COVID-19, this decision provides some guidance on the reasonableness of mandatory testing policies in the context of a long-term care facility home setting. It is unclear whether mandatory testing policies could become challenged in other settings.