The Legality of Employers' Mandatory COVID Testing

Although the COVID-19 pandemic has been with us since March 2020, in many cases we are just now starting to see case decisions relating to COVID-19-specific issues like mandatory testing of employees. These decisions are useful for employers who are still grappling with pandemic issues, although we are hopeful that relatively soon they will be issues of the past.

In a recent arbitration decision from Ontario, an arbitrator upheld an employer’s policy requiring all staff at a retirement home to be tested for COVID-19 every two weeks. In essence, the employer took an Ontario government recommendation and turned it into in a mandatory requirement. Employees who refused to test were to be placed on a leave of absence until testing was completed. The mandatory testing was part of the home’s overall COVID-19 precautions, which also included masking and requiring employees to change their clothes and shoes at the beginning and end of their shifts. It is also important to note that as of the date of the hearing (September 24 and 30, 2020), no positive cases of COVID-19 had been identified among staff, management, or residents of the home.

In the unionized context, a rule unilaterally imposed by an employer will only be upheld if it meets the following criteria:

  1. it is consistent with the collective agreement;
  2. it is reasonable;
  3. it is clear and unequivocal;
  4. it was brought to the attention of the affected employees before the employer attempted to act on it;
  5. the employees were notified that a breach of the rule could result in discipline; and
  6. the employer consistently enforces the rule.

The issue upon which the arbitrator had to focus was the reasonableness of the policy. The union objected to the required testing on the basis that it breached the employees’ dignity and was unjustifiably invasive of privacy. The union specifically pointed to the following in making its arguments:

  1. the policy is unnecessary: the alternate recommended mitigation strategies already in place have been successful in preventing an outbreak;
  2. the policy is unfair because the residents are not being tested; and
  3. the testing doesn’t provide anything of value to the employer beyond a “point in time” positive or negative result and does not prevent infection for the employee being tested.

In dismissing the union’s objections, the arbitrator found the employer did not have to wait for an outbreak to justify the implementation of its policy. Given the highly infectious nature of COVID-19 and potential deadly consequences for elderly living in contained environments, the intrusiveness of the testing was outweighed by its usefulness. While a negative test may be of limited value to the employee being tested, it is valuable to the employer in terms of risk management. Further, a positive test is of immense value to the employer because it allows for immediate identification, isolation, and contract tracing that combats the spread of the virus.

Remembering that the facility in the decision is a retirement home where individuals live independently with minimal to moderate support, this decision suggests that similar policies would also be upheld in long-term care homes where residents require more support. As such, this decision is a welcome one for employers who work with vulnerable populations and arguably for organizations where the unavoidable proximity of employees to one another puts them at greater risk of infection.

If you require assistance with questions about your COVID-19 policies and procedures, the McLennan Ross Labour and Employment team is here to assist you. Please feel free to contact any member of our Labour and Employment Practice Group.