Employers Get the Greenlight for Mandatory COVID-19 Workplace Testing

While uncertainty remains over whether employers can make employees get the COVID vaccine, there’s no doubt that they can implement COVID testing as part of a workplace screening protocol. We know this for 2 reasons.

First, at least one case has confirmed it. The case began when an Ontario 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 union grieved the policy as an invasion of privacy, comparing it to a drug/alcohol testing policy. But the arbitrator said the comparison was apples to oranges. The stakes were much more deadly with COVID, especially given the susceptibility of the home’s residents. 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)].

The other assurance of the legality of COVID workplace screening is that just about every province has established a program to support it. Heck, they’re even providing free test kits supplied by the federal government.

Bottom Line: Mandatory testing, as opposed to mandatory vaccination, is legal. But limits apply. 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 rather than discipline for employees that test positive—although discipline may be appropriate for those who refuse to be tested.

In addition, employees testing positive are entitled to unpaid, and perhaps paid COVID leave for the time they spend in self-isolation.