To enter Canada, all travellers over the age of 5, including those who are fully vaccinated, are required to provide proof of a negative COVID-19 test. Samples to test for COVID-19 can be collected through a nose swab, throat swab, or saliva sample. Many employers are now mandating, or considering mandating, that employees get COVID-19 testing, either once, or at regular intervals, in order to enter the workplace, or in some cases, to continue working. What does the law have to say about policies addressing mandatory COVID-19 testing?
Can an Employer Legally Require Employees Undergo COVID-19 Testing?
To answer this question, it is critical to consider whether the intrusiveness of the COVID-19 test is reasonable when weighed against the objective of the policy requiring such a test.
According to the Occupational Health and Safety Act, employers have the duty to “take every precaution reasonable in the circumstances for the protection of a worker”. In many workplaces, requiring workers to get tested may be a very reasonable precaution to protect workers. In others, maybe less so (i.e., when operations have been taking place remotely without incident and could presumably be continued with employees not needing to be tested).
In Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada, (2020 CanLII 100531 (ON LA)), the union filed a grievance challenging the reasonableness of a policy requiring all workers in a nursing and retirement home to be tested for COVID-19 every two weeks. The labour arbitrator held that the employer’s policy requiring compulsory testing was reasonable in the context of the vulnerability of the population in the home, the seriousness of a potential outbreak, and the public health and ministry guidelines. Of note is that the policy also included accommodations and alternatives to testing. The employer’s decision to discipline an employee for failure to comply was upheld by the arbitrator.
Similarly, the arbitrator in EllisDon Construction Ltd. v. Labourers’ International Union of North America, Local 183 (2021 CanLII 50159) found that the employer’s policy of requiring workers at many of its construction and building worksites to undergo a Rapid COVID-19 Antigen Screening test twice weekly in order to access the workplace was reasonable when weighed against the objective of preventing the spread of COVID-19. Factors such as the prevalence of the virus at the time the policy was implemented and possibility of social distancing given the nature of the industry were considered by the arbitrator.
What is “Reasonable”?
When looking at the reasonableness of a mandatory COVID-19 testing policy, courts will likely consider questions such as:
- Does your policy have something built in for accommodations/exemptions?
- Are you serving a high risk population?
- Are you providing an essential service?
- Is there evidence that current safety protocols (social distancing measures, etc.) are not controlling the risk of transmission?
- Is there evidence that alternative measures (temperature check, etc.) would be insufficient to prevent the spread of the virus in the workplace?
- Are there policies around requiring visitors to be tested?
- What happens if an employee refuses to get tested?
What Happens if an Employee Refuses to Undergo COVID-19 Testing?
If an employee in a workplace refuses to get tested, the employer should determine the reasons why before jumping to conclusions (but take care to avoid asking for more personal health information than necessary). Employers should not discriminate against employees who have a legitimate human rights reason for not getting tested – for example, if it is contrary to their religion or would be going against medical advice. These workers should be accommodated up to the point of undue hardship for the employer.
If you have questions about COVID-19 testing in the workplace, please get in touch for a consultation.