Arbitrator Dana Randall has ruled that unilaterally-imposed, bi-weekly testing for the novel coronavirus at a Woodstock, Ont., unionized retirement home is reasonable when weighed against the need to prevent the spread of the coronavirus.

“The decision tells us that, in this particular environment, mandatory COVID-19 testing is a reasonable exercise of management right given the nature of the test, which is not intrusive, and the serious harm it seeks to prevent,” says Thomas Stefanik, a partner and head of the employment and labour group at Toronto-based Torkin Manes LLP, counsel for the employer, Caressant Care.

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Stefanik believes the decision will carry considerable weight, as he knows of no other rulings on the issue. “We also presented evidence that most Ontario unions had accepted mandatory testing, which indicates that the community considers it to be a reasonable measure.”

George Vassos, a labour and employment partner in Littler Mendelson P.C.’s Toronto office, believes it’s significant that the arbitrator considered the testing reasonable in a retirement residence context. “Residents in retirement homes live more independently than more vulnerable residents of a nursing home, but are still elderly and living in a contained environment.”

The Christian Labour Association of Canada, who grieved the testing, relied on precedents related to drug and alcohol testing. But Randall concluded that the comparison wasn’t appropriate.

“They are different in kind,” Randall wrote. “Intoxicants are not infectious. COVID-19 testing reveals only one piece of information: the employee’s COVID-19 status. Being intoxicated is culpable conduct; testing positive is not.”

To be sure, Randall opined, the privacy intrusion issues were “arguably comparable”. But, in the case of the coronavirus pandemic, the need for testing was greater.

“In my view, when one weighs the intrusiveness of the test: a swab up your nose every fourteen days, against the problem to be addressed — preventing the spread of COVID in the home, the policy is a reasonable one,” Randall reasoned. “While the home had not had an outbreak, I agree entirely with the employer that, given the seriousness of an outbreak, waiting to act until that happens, is not a reasonable option.”

Still, Vassos cautions that the ruling is not a carte blanche for mandatory coronavirus testing, screening or vaccination in the workplace.

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“Any case must be decided on the evidence before the arbitrator, so it’s important to remember that things on the pandemic front and the reaction to it are moving very quickly, which means that the evidence might change as time goes on,” he said. “This case was about an employer whose business involved seniors in a closed environment, and that’s a different context than we might see in other cases.”

Vassos also points out that the prevailing guidance from public-health authorities, which varies depending on the enterprise, is a key factor — but that too has changed rapidly, further complicating the analysis.

“We’re now at version four of Ontario’s mandatory screening guidelines,” he says. “Because we continue to learn more about COVID-19 over time, what may have made sense originally may or may not make sense now.”

Ultimately, Vassos adds, arbitrators must decide cases within a larger framework that encompasses employers’ obligation to maintain a safe and healthy workplace, and the risk analysis relating to that obligation.

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