January 21, 2021
In June 2020, Caressant Care Nursing & Retirement Homes (the “Employer”) advised its staff that it would begin conducting bi-weekly COVID-19 testing and would begin to require proof of testing before an employee could return to work. When several staff members complained, the Employer advised its employees that if they chose not to comply with the testing policy, they would be required to wear full PPE for the entirety of their shifts. In response, the Christian Labour Association of Canada (“CLAC”) filed a grievance on behalf of the staff.
CLAC submitted that the policy was a serious and unjustified invasion of employee privacy and that the Employer had failed to establish that the policy was even necessary, given other safety measures in place and the absence of any cases of COVID-19 in the residence. CLAC further argued that the policy was unfair and incoherent and could not achieve its goal in light of the fact that residents of the retirement home were not tested.
CLAC further asserted that the policy would not accomplish its goals, as testing would only indicate whether an individual had COVID-19 at the moment of testing.
Arbitrator Randall held that when balancing the intrusiveness of the test –a swab up employees’ noses every fourteen days – against the problem to be addressed – COVID-19 – the policy was reasonable. Though the residence had not yet had an outbreak, Arbitrator Randall agreed with the Employer that waiting to act until such an outbreak occurred was not a reasonable option, given the seriousness of the circumstances.
Arbitrator Randall further rejected CLAC’s argument that testing was of limited value or that it could not accomplish its aims; a negative test may have been of little value to the individual employee, but it was of high value to the residence as a whole. Quoting Dr. Anthony Fauci, he wrote “If you just test people who are symptomatic, you’re going to miss a very large contingent of the spread of the infection in the community.”
Accordingly, the grievance was dismissed and the mandatory testing policy for staff remained in effect.
Authored by Rebecca Meharchand, Articling Student