Arbitrator Upholds Rapid COVID-19 Testing Program on Construction Sites

Authors: John Agioritis, Teague Pushor

On June 10, 2021, an Ontario labour arbitrator dismissed a challenge to an on-site COVID-19 rapid testing policy implemented by EllisDon Construction Ltd. (EllisDon).

Local 183 of the Labourer’s International Union of North America filed a grievance on May 11, 2021, claiming that EllisDon and its subcontractor violated the collective agreement by implementing rapid COVID-19 antigen testing. The union took the position that the testing policy was an unreasonable exercise of management rights and an unreasonable company policy or rule.

The Employer’s Rapid COVID-19 Testing Program

The employer implemented the testing program as part of a pilot program led by the Ontario Ministry of Health. The test used was the “Abbott Panbio COVID-19 Antigen Screening Test,” which was Health Canada approved.

EllisDon did not introduce testing at all its worksites. Instead, the company decided which sites would be subject to testing based on a number of factors including:

  • community spread and case counts,
  • hot-zone locations,
  • the size of the project,
  • risk level for workplace transmission,
  • critical infrastructure projects, and
  • client requirements.

At the time of the arbitration, there were 47 affected sites.

The Rapid Antigen Screening Protocol required all individuals attending at affected job sites to submit to rapid antigen testing twice per week to gain access to the worksite. The protocol required the workers to pass other screening tests, including a questionnaire and temperature check, before receiving the COVID-19 test.

Third-party health professionals performed the testing. No one other than the employee and the health professional observed the test or the results. The health professionals collected minimal information in order to communicate the results to the worker and local public health unit.

If a worker received a positive test, the worker was denied entry to the worksite and required to undergo additional confirmatory lab-based testing. Workers who refused to take the test were also denied entry to the worksite.

Through this program, the employer conducted 100,000 tests which led to 118 confirmed cases of COVID-19 and 20 false positives.

The Arbitrator’s Decision

In concluding that the Rapid Antigen Screening Protocol was reasonable, the arbitrator considered the following factors:

  • Toronto had been on lockdown since November 20, 2020, and Ontario had been on lockdown since April 8, 2021.
  • Due to the nature of the work, the workers could not maintain social distance.
  • There had been previous outbreaks and transmission at the job site.
  • Viruses can spread more easily in the construction industry because construction workers interact with workers from other companies and move between job sites.
  • The employer conducted testing in a minimally invasive and hygienic manner.

On the balance, the arbitrator found that the objective of preventing the continued spread of COVID-19 outweighed any invasion of privacy resulting from the testing.

The Arbitrator followed the decision in Caressant Care Nursing and Retirement Homes, which upheld a policy that required mandatory COVID-19 testing of care home staff every two weeks. While there had been prior outbreaks at the workplace in this case, the arbitrator confirmed in Caressant that it is not a requirement to wait for an outbreak to occur before implementing a testing program. In Caressant, the arbitrator rejected the union’s attempt to draw an analogy between COVID-19 testing and drug and alcohol testing on the basis that the privacy concerns outweigh the policy goal of preventing the spread of COVID-19.

In the case at hand, the Arbitrator also rejected the union’s submission that transmission of COVID-19 was less of a risk because construction was taking place in an “open air” environment because not all walls had been constructed. The Arbitrator found that the risk of transmission of COVID-19 at the worksite was not speculative because nine individuals at the worksite had contracted COVID-19 and there were at least two apparent cases of transmission at the job site, resulting in Toronto Public Health declaring the project an outbreak worksite.

Key Takeaways for Employers Considering COVID-19 Testing

The implications of this decision are significant for Canadian employers who have or are considering implementing COVID-19 testing policies at their worksites. The decision establishes that pre-access rapid COVID-19 testing using an antigen based test may be a reasonable response to the ongoing pandemic in appropriate circumstances.

MLT Aikins will continue to monitor and provide updates on developments with respect to rapid COVID-19 testing in the workplace. If you’re an employer with questions regarding COVID-19 in the workplace, please contact a member of our occupational health and safety or labour and employment team.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.