Arbitrator Upholds Employer’s Policy for COVID-19 Rapid Testing on Construction Employees

Written on behalf of Peter McSherry

In late 2020, we had written about a labour arbitration decision that addressed the ability of an employer to require regular COVID-19 testing for staff.

More recently, in another arbitration ruling released in June 2021, the arbitrator held that the employer was entitled to conduct COVID-19 rapid testing on its employees, despite the union’s objection.

Employer Imposes COVID-19 Rapid Testing Policy on Construction Site

The employer is the general contractor on a mid-rise residential construction project in Toronto which began a project to build a 59-story building in 2018.

It was estimated that, in 2021, there were approximately 100 construction employees at the project, and it was not always possible to maintain the recommended six foot social distancing practice in light of the COVID-19 pandemic.

As such, beginning in late February 2021, the employer introduced a Rapid COVID-19 Antigen Screening Program (the “policy”) as part of a pilot program being led by the Ontario Ministry of Health (“MOH”), with support from partner ministries Public Health Ontario and Ontario Health. The test was conducted on site on a twice-weekly basis, in accordance with MOH guidelines, and was administered via a throat and bilateral lower nostril swab.

Union Files Grievance Over Rapid Testing Policy

Under the employer’s policy, individuals could refuse to submit to the test, but anyone refusing would be denied access to the worksite. If the test was negative, the employee could go back to work, but if the test was positive, a series of measures would then take place. Any request for accommodation on the basis of human rights concerns was addressed on a case-by-case basis.

In May 2021, the union filed a grievance alleging that the testing policy violated the collective agreement. It argued that the policy was an unreasonable exercise of management rights and an unreasonable company policy or rule. In addition, the union expressed the following concerns about the policy, claiming that:

•      Rapid testing was invasive and violates employee privacy;
•      Rapid testing was “experimental”;
•      Rapid tests produce false positive results.

In response, the employer disputed that there was a reasonable basis for the union’s concerns. It submitted that its main interest was the safety of not only its workforce, which included the workforces of various trades on site, but also the safety of the public. It argued that its interests in promoting health and safety and preventing the spread of COVID-19 not only in the workforce but in the public, far outweighed the interests of the employees in this case.

Arbitrator Considers COVID-19 Concerns Specific to Construction Industry

The arbitrator consideredthe circumstances in the public at large and in the construction industry in particular, noting that while large segments of the economy had been shut down in an effort to slow the spread of COVID-19, residential construction had been designated an essential service and allowed to continue. However, the arbitrator highlighted the associated dangers, stating:

“As an essential service, workers in the residential construction industry continue to put themselves at risk. COVID-19 represents an extraordinary threat to the health and safety of these workers. COVID-19 can spread through respiratory droplets. … Given the nature of the work and the size of the projects, employees do not and cannot maintain social distancing.

Further, the risk of COVID spread is increased by the nature of the construction industry. … Employment in the construction industry is transitory and employees regularly move between job sites and employers. In the construction industry, viruses can spread more easily than in other industries. On large job sites, employees of one subcontractor can easily infect employees of another subcontractor putting other employees and their families at risk.”

Additionally, the arbitrator noted that the risk of COVID-19 spread was not hypothetical or speculative, as the employer had already experienced numerous outbreaks at its site in Toronto.

Arbitrator Upholds Employer COVID-19 Rapid Testing Policy as Reasonable

The arbitrator also took into account the numerous and significant efforts made to protect the privacy and dignity of employees under the employer’s rapid testing policy.

Ultimately, the arbitrator dismissed the union’s grievance, stating:

“In conclusion, COVID spread remains a threat to the public at large and those working at [the employer’s] construction sites. When one weighs the intrusiveness of the rapid test against the objective of the Policy, preventing the spread of COVID-19, the policy is a reasonable one.”

Get Help

If you are an employee concerned about the legality of workplace policies, or an employer looking to ensure you stay compliant with health and safety regulations as they relate to COVID-19, contact the offices of Guelph employment lawyer Peter McSherry . We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.