In the recent decision of EllisDon Construction Ltd. v Labourers’ International Union of North America [EllisDon], an Ontario Arbitrator upheld an employer’s COVID-19 testing policy requiring workers to undergo a semi-weekly mandatory Rapid COVID-19 Antigen Screening Test (the “Test”), finding the policy was a reasonable exercise of the employer’s management rights. Given the specifics of the case, the Arbitrator held that the testing policy was reasonable to help prevent the spread of COVID-19 not only in the workplace, but to the public at large. This decision offers some guidance for employers on when a mandatory COVID-19 testing policy may be reasonable and legally on side in the workplace and gives some insight as to when the intrusiveness of a mandatory COVID-19 testing policy may be unreasonable when weighed against the objective of the policy.
The decision involved EllisDon Construction Ltd. (“EllisDon”), the general contractor on a residential construction project. Verdi Structures Inc. (“Verdi”), one of several subcontractors working on the EllisDon project, had several employees engaged to perform work on the project. In February 2021, the employer implemented a Rapid COVID-19 Antigen Screening Program (the “Policy”) as part of a pilot program being led by the Ontario Ministry of Health. The Test has been approved by Health Canada. Pursuant to the Policy, all employees attending the jobsite (including those of Verdi and other subcontractors) were required to take the Test to gain access to the workplace.
The Test was administered by a third-party healthcare professional on the employer’s worksite. Employees continued to receive their regular pay during the time spent taking the Test, no personal health card information was taken or stored during the Test, the Test was administered through a nostril swap (which is less invasive compared to the laboratory-based PCR test), and the testing was conducted in a manner that ensured the privacy of the employee’s medical information, as the testing swab was thereafter destroyed in the employee’s presence following the administration of the Test.
The only information collected by the employer was the name and contact information of the employees. This information was disclosed to and used by healthcare professionals and the employer’s management to communicate results to the individuals tested in addition to local public health units.
The Policy stipulated that if any of the subcontractor’s employees refused to submit to the Test, they would be denied access to the worksite. In the event of a refusal, Verdi would make every effort to reassign that employee to a different site, but if no alternative site was available, the refusing employee was laid off.
By May 2021, there had been over 100,000 Tests conducted as part of the Policy, producing a total of 179 positive results. Of the 179 positive results, 118 were later confirmed as positive by the laboratory-based PCR test.
The union filed a grievance on behalf of 55 Verdi employees on the basis that the Policy was an unreasonable exercise of management rights. The union relied on drug and alcohol testing cases to argue that the Policy imposed was an unreasonable exercise of management rights, and that the employee’s privacy and bodily integrity interests were not fairly being protected. The union also stated that the risk of COVID-19 transmission in the workplace had been significantly reduced through other less intrusive measures already in effect at the worksites.
In contrast, the employers EllisDon and Verdi argued that their main interest in the present case was not only the safety of their employees, but also the safety of the public. The employer stated that their interests in promoting health and safety in the workplace and preventing the spread of COVID-19 far outweighed the competing interests raised by the employees.
The Arbitrator found that the Policy’s objective of preventing the spread of COVID-19 outweighed the minimal intrusiveness of the Test and therefore, the Policy was a reasonable exercise of management rights.
In that regard, the Arbitrator stated that to implement such a policy, consideration must be given to the public at large and particularly the residential construction industry. The residential construction industry was deemed as an “essential service” by the Ontario government, thus these employees continued to put themselves at risk of contracting and spreading the COVID-19 virus. Given the nature of the work and the size of the projects, employees could not maintain social distancing. The risk of COVID-19 spreading was increased by the nature of the industry, where employees would regularly move between jobsites. Moreover, the Arbitrator found that the employer took significant steps to protect the privacy and dignity of the individuals tested, the Test was minimally invasive, and there was no evidence that the efforts to mitigate the spread of COVID-19 in the workplace had significantly reduced transmissions.
In addition, the Arbitrator rejected the union’s analogy of the COVID-19 Test to drug and alcohol testing, reasoning that “intoxicants 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.”
Takeaways for Employers
The EllisDon decision is highly important for employers who are seeking to implement a mandatory COVID-19 testing policy in the workplace. Employers should consider the nature of the workplace and industry they service, and the nature of the work performed by their employees before deciding whether to bring about such a policy in the workplace.
When looking at the reasonableness of a mandatory COVID-19 testing policy, courts and adjudicators will likely consider whether the employer is serving a high-risk population, whether the employer is providing an essential service to the public, whether employees necessarily have to work in close proximity to others, whether there is evidence that the current safety protocols (i.e. social distancing) has controlled the risk of transmission, whether there is evidence that alternative measures (i.e. temperature checks) would be insufficient to prevent the spread of the virus, and/or whether the policy meets the employer’s accommodation obligations for employees who are unable to take the rapid COVID-19 test for reasons related to protected grounds, such as a medical condition or religious reason.
These considerations will impact how a court will assess the reasonableness and legal enforceability of a mandatory COVID-19 testing policy. Employers should be mindful however that EllisDon involved a physical worksite with many employers working in close proximity, and may not necessarily be used to uphold a COVID-19 testing policy in another workplace. For example, in an office environment where social distancing is possible at the employer’s workplace and the risk of transmission is low, then requiring a mandatory COVID-19 testing policy may not be held to be reasonable in the circumstances. Employers should still explore and consider other less-intrusive preventative measures before making the determination that COVID-19 testing is a necessary measure in their workplace.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.