In a recent unreported labour arbitration award, Caressant Care Nursing & Retirement Homes and Christian Labour Association of Canada, Arbitrator Dana Randall confirmed that the employer's mandatory COVID-19 testing policy was a reasonable exercise of management rights.
The employer, a retirement home located in Woodstock, Ontario, provides rental accommodation with care and services to residents who can live independently with minimal to moderate support. Out of the 100 residents served by the home, the unionized employees care for 85 residents and 15 transitional residents. As a retirement home, the home is provincially regulated by the Retirement Homes Regulatory Authority under the Retirement Homes Act, 20101. Additionally, employees provide laundry services to residents of an adjacent nursing home. The employer must therefore also follow directives issued under the Health Protection and Promotion Act2, including Directive #3 for Long-Term Care Homes under the Long Term Care Homes Act, 20073.
In June 2020, based on the provincial government's recommendations on COVID-19 surveillance testing in long-term care homes4, the employer required that all employees at the facility undergo COVID-19 nasal swab testing every two weeks. All employees were paid for one hour of work and had their parking fees waived each time they underwent COVID-19 testing pursuant to the policy. Employees who failed to comply with the policy were required to don full personal protective equipment for the entirety of their shifts or alternatively, would be held out of service until testing was undertaken. The policy included an accommodation provision which indicated that challenges to a nasal swab test could be addressed on a case by case basis.
While employees initially complied with the mandatory testing policy, the union eventually grieved that the policy constituted an unreasonable exercise of management rights. In challenging the mandatory testing, the union attempted to draw parallels with case law on drug and alcohol testing in the workplace. It also relied on the fact that there had been no COVID-19 outbreaks in the workplace.
The arbitrator held that the employer's mandatory COVID-19 testing policy was both consistent with the collective agreement and was a reasonable exercise of the employer's management rights. In reaching this decision, the arbitrator differentiated 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 noting 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.”
Ultimately, the arbitrator concluded that when the intrusiveness of a COVID-19 test (“a swab up the nose every fourteen days”) is weighed against the problem to be addressed (“preventing the spread of COVID in the home”), the mandatory testing policy was reasonable, despite the fact that there had not yet been an outbreak in the retirement home. In the arbitrator's view, waiting for an outbreak to occur before COVID-19 testing could be implemented was simply not a reasonable option, given the consequences of an outbreak in the home.
Furthermore, the arbitrator found that the testing policy was not a surveillance tool or of limited utility. Rather, the arbitrator confirmed the high value of a positive COVID-19 test result in the workplace as it may lead to identification, isolation, contact tracing and other tools available to the employer to combat the spread of COVID-19.
Takeaways for Employers
As the number of COVID-19 cases in the community continue to increase and with vaccination for most Canadians still months away, employers in various sectors continue to grapple with the implementation of health and safety policies and procedures to protect their employees and/or the public from transmission. While this decision provides guidance on the reasonableness of mandatory testing policies in the context of a retirement home setting, it remains to be seen if mandatory testing policies will be challenged in other, non-health care or non-unionized settings. At the very least, the decision will arguably be valuable to employers operating in settings where they serve vulnerable individuals in which the consequences of an outbreak could be particularly serious.
Employers considering implementing a testing policy in the workplace should contact legal counsel. If you need advice on this subject, please contact the authors or your regular Fasken lawyer.
1 S.O. 2010, c. 11.
2 R.S.O. 1990, c. H.7.
3 S.O. 2007, c. 8.
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