Arbitrator Upholds Mandatory COVID-19 Testing of Retirement Home Employees

You can make employees get tested for coronavirus if you have the right policy

Under COVID-19 emergency orders and public health guidelines, businesses may not conduct on-site operations unless they implement a plan to prevent workplace infection. In addition to social distancing and scrupulous cleaning and hygiene, the infection control plan must provide for screening employees, vendors and other essential visitors before letting them enter the facility. Screening essentially means asking would-be entrants if they have any coronavirus symptoms, recent exposure to coronavirus cases and/or recent travel experience outside the province. While not expressly required (with limited exceptions), many employers have decided to go one step further by requiring employees to undergo COVID-19 testing. Sooner or later, employees and unions were bound to raise privacy and other legal objections to pre-entry COVID testing. And now, for the first time, a Canadian legal tribunal has weighed in on the issue. Spoiler Alert: The union grievance against the testing policy failed.

The Caressant Care Case

The case began when a retirement home unilaterally imposed a new policy requiring staff to be tested for COVID every 2 weeks. Staffers who refused to be tested wouldn’t be allowed to come to work; those who tested positive would be accommodated on a case-by-case basis. The policy was designed as a safety measure to protect not just employees but also the home’s vulnerable elderly residents. But the union objected, contending the policy was unnecessary, privacy invasive and overly broad and contending that only employees with COVID symptoms should be required to undergo testing.

The union called on the Ontario arbitrator to scrutinize the COVID test policy with a microscope the way tribunals do when evaluating workplace drug and alcohol testing policies. But the arbitrator said that this was an apples-to-oranges comparison. The stakes were much more deadly with COVID. While less vulnerable than nursing home residents, people living in retirement communities are still elderly and at great danger if they catch coronavirus. Besides, the arbitrator reasoned, a positive COVID test isn’t “culpable conduct” subject to discipline the way a positive drug/alcohol test typically is [Christian Labour Association of Canada v. Caressant Care Nursing & Retirement Homes (D. Randall), December 9, 2020 (unreported)].

Takeaway

Although it’s just one ruling, the Caressant Care case confirms the consensus view that unilaterally requiring employees to be tested for COVID-19 is a justified safety measure during the pandemic, particularly for healthcare and other high-risk settings. The ruling may also prove to be a sneak preview for a case testing the legality of a mandatory COVID vaccine policy. Still, employers need to keep in mind that a mandatory COVID testing policy must:

  • Be consistent with any collective agreements that apply to the affected employees;
  • Be as narrow and minimally invasive as possible, including with regard to which employees must undergo testing; and
  • Provide for accommodations for employees that test positive.

In other words, employees who test positive shouldn’t be subject to discipline. However, discipline may be appropriate for employees who refuse to be tested at all. In addition, employees testing positive should be entitled to exercise their leave rights if they have to self-isolate, whether unpaid as required by employment standards laws, or paid if your COVID leave benefits go beyond the legally required ESA minimums. (Go to the HRI website for a COVID testing policy that you can adapt for use at your own workplace.)