Arbitrator Upholds Mandatory COVID-19 Testing

August 6, 2021

A recent arbitral decision, EllisDon Construction Ltd. v Labourers’ International Union of North America, Local 183, may provide some needed insight into how arbitrators will consider workplace policies mandating COVID-19 testing and/or vaccinations for its employees. In a decision released June 10, 2021, Arbitrator Robert Kitchen dismissed a grievance filed by LIUNA Local 183 in which the Union challenged an employer’s policy requiring employees to take rapid COVID-19 tests in order to gain access to the workplace. Arbitrator Kitchen ultimately found the policy to be reasonable when weighing the intrusiveness of testing against the threat of and need to prevent COVID-19.

The Employers, EllisDon and Verdi Structures, are contractors engaged in a construction project in Toronto.  In February 2021, EllisDon introduced a policy that mandated rapid COVID-19 testing at select job sites, which were selected based on criteria such as community spread, case counts, hot-zone locations, project size, and level of transmission risk, among other factors. In April 2021, EllisDon expanded the policy to include sites where the owners had not expressly approved testing, responding to the “third wave” of COVID-19 cases in Ontario and emerging variants of the virus. The Grievance, filed on behalf of several employees at the project, claimed that the policy was unreasonable. The Grievors argued that the testing was invasive and violated their privacy, that rapid testing was “experimental” and that it produced false positive results.

The Union relied in part on arbitral jurisprudence concerning mandatory drug and alcohol testing, a context in which employees’ bodily integrity and privacy interests are called into question. The Union also emphasized that the project was located in an “open air” environment, minimizing risk of transmission.

Arbitrator Kitchen, however, noted that more invasive testing regimens had been upheld by arbitrators.  He noted that in Caressant Care Nursing and Retirement Homes the union had argued that testing was an intrusion on privacy and a breach of dignity because a nasal swab was more intrusive than certain drug or alcohol tests, such as a breathalyzer. Arbitrator Randall nonetheless held that the intrusiveness of testing was reasonable when weighed against the need to prevent the spread of COVID-19.

Arbitrator Kitchen noted that in a previous decision from April 2021,  Unilever Canada Inc., v United Food and Commercial Workers, Local 175, Arbitrator Bloch had employed the following factors to decide whether mandatory COVID-19 testing was reasonable: the number of workers onsite and on the production lines; any prior or existing outbreaks or transmissions of the virus in the facility; and the available evidence linking such testing to effective prevention of COVID-19 transmission in the workplace. Despite the fact that no outbreak had occurred at the facility in question, Arbitrator Bloch dismissed the grievance, citing the number of employees at the site and the need to “err on the side of caution.”

In the Grievance at hand, Arbitrator Kitchen found that there were even more compelling circumstances to support the Employer’s testing policy, noting in particular the existing history of transmissions at the Project. In balancing the interests of employer and employee, and the reasonableness of testing against the broader need to curb the spread of COVID-19, the arbitrator found the Employer’s testing policy to be reasonable and the grievance was dismissed. The reasoning in this decision, and the decisions that it relies on, may pave the way for future, highly-anticipated developments surrounding mandatory vaccination policies. The question of whether it is reasonable for an employer to require workers to be vaccinated may look to arbitral decisions such as this in considering the factors to balance certain interests and in assessing reasonableness, such as number of workers onsite, history of outbreaks, and the seriousness of COVID-19.

Authored by Ramna Safeer, Articling Student

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