In Caressant Care Nursing and Retirement Homes v Christian Labour Association of Canada, an arbitrator found that a mandatory COVID-19 testing policy was reasonable.
The employer, Caressant Care Nursing and Retirement Homes (“Caressant Care”), operated a retirement home in Woodstock, Ontario. As the retirement home shared employees with an adjacent nursing home, the retirement home was required to follow directives for long-term care homes issued under the Health Protection and Promotion Act.
In June 2020, Caressant Care advised staff that it would implement a policy requiring staff to undergo bi-weekly COVID-19 nasal swab testing (the “Policy”), in line with a directive made by Ontario’s Ministry for Seniors and Accessibility. While the Ministry directive was a recommendation, Caressant Care made clear that it had decided to impose mandatory testing.
Initially, the Policy prohibited employees who refused to participate in testing to work. However, after several employees communicated their refusal to participate in the mandatory testing, Caressant Care allowed such employees to work, pending an arbitrator’s award, if they donned full personal protective equipment (“PPE”) for the entirety of their shifts. Additionally, the Policy allowed medical accommodations to be addressed on a case-by-case basis.
In bringing the grievance, the union argued that the Policy constituted an unreasonable exercise of management rights. To support its claim, the union drew parallels between the Policy and random drug and alcohol testing in the workplace, which had been found to be an unjustified intrusion on employee privacy in a previous decision by the Supreme Court of Canada. The union further argued that the Policy was overbroad and submitted that while the employer would be justified in testing employees that were symptomatic, the Policy did not require symptoms as a triggering event to testing.
Additionally, the union argued that Caressant Care had failed to establish that the testing policy was even required, given that that there had not been an outbreak at Caressant Care prior to the Policy’s implementation. In any event, the Policy was not effective at achieving its stated purpose, as test results would only indicate the tested employee’s health at the moment of testing and residents would not be tested.
The arbitrator dismissed the grievance and found that the Policy was a reasonable exercise of Caressant Care’s management rights under its collective agreement with the union.
The arbitrator considered the guiding principles in KVP Co Ltd and Lumber & Sawmill Workers’ Union, Local 2537 (1965), 16 LAC 72 (the “KVP test”), which was endorsed by the Supreme Court of Canada in CEP, Local 30 v Irving Pulp & Paper Ltd.
Under the KVP test, a rule (such as a policy) introduced by the employer without the union’s agreement will give rise to discipline only if it meets the following criteria:
- 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.
In this case, criteria 3-6 were not contested by the parties. The policy was clear an unequivocal, it was brought to the employees’ attention, the consequence for not participating in testing (being held out of service) was disciplinary, and the employer allowed objecting employees to work, pending arbitration, if they wore additional PPE.
In reaching a decision, the arbitrator weighed the intrusiveness of the Policy against the problem it purported to address (preventing the spread of COVID-19 within the retirement home) and concluded that the Policy was reasonable. The arbitrator reasoned that while the home had not experienced an outbreak, “waiting to act until that happens is not a reasonable option”, given the novelty and infectious nature of COVID-19, as well as its known deadliness “for the elderly, especially those who live in contained environments”.
The arbitrator distinguished testing pursuant to the Policy from drug and alcohol testing. While the cases relied upon by the union were a “reasonable starting point”, controlling COVID-19 infections could not be reasonably equated to monitoring the workplace for intoxicants, which are not infectious. Moreover, while being intoxicated is “culpable conduct”, testing positive for COVID-19 is not.
The arbitrator also refused to characterize the Policy as a surveillance tool or as a policy of limited utility. The arbitrator stated that “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 result would enable Caressant Care to identify, isolate, contact trace, and make use of other tools and protocols to limit COVID-19’s spread.
Takeaways for Employers
This decision confirms that an employer may, in certain circumstances, implement policies mandating COVID-19 testing in high-risk sectors where staff are working with vulnerable populations, such as long-term care or health care. However, it remains to be seen whether such policies will be upheld in other workplace settings. Notably, Caressant Care had implemented its Policy based on the recommendation of a directive issued by a provincial ministry to long-term care homes in particular, and Ontario has not issued similar directives to most other workplace settings. While the arbitrator did not cite the directive in deciding to uphold the Policy, this disparity may be used to challenge the legitimacy of mandatory testing policies in settings outside of such high-risk sectors.
Employers should ensure that any COVID-19-related policy they implement in the workplace is minimally intrusive, provides for reasonable accommodations, and makes its purpose clear. Employers should also ensure to take proactive steps to clearly communicate the policy to employees, including any changes that may be made, particularly as public health guidelines continue to evolve.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.