In a recent arbitral decision by Arbitrator Dana Randall, the Christian Labour Association of Canada (the "CLAC") challenged a COVID-19 employee testing policy of the employer, Caressant Care Nursing & Retirement Homes (the "Employer").
The policy read in part:
- All staff are to participate in ongoing COVID-19 surveillance testing conducted by nasal swab.
- Testing will be done every two weeks and include all individuals working in the retirement home (e.g., front-line workers, management, food service workers, contracted service providers, basic aids and guest attendants).
- Medical accommodations will be addressed on a case by case basis.
- A refusal to participate in the testing would result in the employee being held out of service, until such testing was undertaken.
The CLAC argued that the policy amounted to an unreasonable exercise of management rights and at its core, the policy was an unreasonable intrusion into employee privacy. The CLAC further argued that the policy did not accomplish its stated purpose, as "an employee who tests negative today can be infectious tomorrow." Finally, the CLAC argued that testing was not required as the Employer had adopted all recommended mitigation strategies, which had been successful. As such, the CLAC argued that given the intrusion of an employee's privacy, the Employer was required to provide a compelling justification against which the intrusion can be weighed.
In dismissing the grievance, the Arbitrator commented:
In my view, when one weighs the intrusiveness of the test: a swab up your nose every fourteen days, against the problem to be addressed — preventing the spread of COVID in the Home, the policy is a reasonable one. While the Home had not had an outbreak, I agree entirely with the Employer that, given the seriousness of an outbreak, waiting to act until that happens, is not a reasonable option.
Later in the decision, the Arbitrator went further:
However, I strongly disagree with the Union...characterizing testing as a limited surveillance tool. That is not accurate. A negative test may be of limited value to the individual employee tested but it is of high value to the Home; and a positive test is of immense value to both the employee and the Home. A positive test leads to identification, isolation, contact tracing and the whole panoply of tools used in combatting the spread of the virus. Arguably, the only way the testing could be improved is to increase its frequency, but that is not a proposal likely to have legs in the bargaining unit.
Despite the novel nature of the COVID-19 virus, the parties argued the matter in the context of the oft cited "KVP" principles (see the Supreme Court of Canada's endorsement of these principles in CEP, Local 30 v Irving Pulp & Paper, 2013 SCC 34).
The KVP principles hold that a unilateral rule introduced by an employer must satisfy the following conditions:
- It is consistent with the collective agreement;
- It is reasonable;
- It is clear and unequivocal;
- It was brought to the attention of the employee(s) affected before the employer attempts to act on it;
- Where the rule is invoked to justify discharge, the employee was notified that a breach of the rule could result in discharge; and,
- The employer has enforced the rule consistently since its introduction.
As such, when considering a new COVID-19 policy (or other novel policy), employers must remember that an arbitrator will still review such policies in the context of established arbitral principles.
Should you have any questions regarding the impact of this decision on your business, or wish to have your employment agreements reviewed, please do not hesitate to contact McCarthy Tétrault's labour and employment group.
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