Mandatory Rapid COVID-19 Testing Policy – Upheld by Arbitrator.

By Ronald Minken and Tejpreet (Tanya) Sambi

The Ontario Government has permitted Employers to administer Rapid COVID-19 Antigen tests at their workplace. In a recent Ontario Arbitration decision, an arbitrator found that a Mandatory Rapid COVID-19 Antigen Screening Program (Policy) was reasonable, and upheld the mandatory policy.

In EllisDon Construction Ltd. v. Labourers’ International Union of North America, Local 183, 2021 CanLII 50159, the employer, a construction and building services company, required its employees to take a COVID-19 test prior to attending specific construction worksites. The test was administered by a third-party healthcare professional, employees were paid for the time they took to have the test performed, no medical information was collected either by the healthcare professional or the employer, the test was a lower nostril swab (less invasive than the deep nostril swab), and no one was permitted to observe the test being administered. The only information collected by the employer was the name and contact information of the employees and was disclosed to the healthcare professional and the employer’s management team in the event that the employee tested positive.

Pursuant to the policy, if the employee refused to submit to the test, and there were no alternative job sites that the employee could be assigned to, then the employee was to be laid-off.

Labourers’ International Union of North America filed a grievance against EllisDon Construction Ltd. on the basis that the policy was a breach of the collective agreement and that it was an unreasonable exercise of management rights.

The Arbitrator found that in this particular workplace, the employees could not maintain six feet of distance (given the nature of the work), the risk of spreading COVID-19 was high, significant steps were taken to protect the privacy rights of the employees who were being tested, the test was minimally invasive, and there was no evidence that any of the other protective measures (such as the use of PPE, hand sanitization stations, etc.) had significantly reduced transmissions or that all employees were working in an “open air” environment (i.e. outdoors).