In a recent ruling concerning EllisDon Construction Ltd. v. Labourers’ International Union of North America, Local 183, 2021 CanLII 50159, an Ontario Arbitrator has upheld that the intrusiveness of an employer’s compulsory Rapid COVID-19 Antigen Screening Program (Policy) is evaluated against the goal of preventing the spread of COVID-19, the Policy was reasonable.

Earlier in February, a construction and building services company implemented the Rapid COVID-19 Antigen Screening Program Policy as part of a pilot program led by the Ontario Ministry of Health (MOH). According to the Policy, all individuals attending specified job sites are required to submit to a Health Canada-approved Rapid COVID-19 Screening Test to gain access to the worksite. Moreover, subcontractors were required to submit their employees to this test. If a subcontractor’s employee refused to submit to the test and was denied access to the workplace, the subcontractor was required to make best efforts to reassign that employee to a different site, and if no such site was available, the refusing employee would be laid off.

In turn, the Local 183 Union filed a grievance against the company and a subcontractor, claiming they had violated the collective agreements by implementing the testing. According to the Union, the Policy was an unreasonable exercise of management rights and an unreasonable company policy or rule. It claimed that when weighed against employee interests, including the right to privacy and bodily integrity, the Policy was not “a reasonably proportionate response to mitigate the risk of COVID-19 transmission in the workplace.” To defend its position, the Union cited drug and alcohol testing cases that concluded that universal random testing for drugs and alcohol was an unreasonable exercise of management rights.

Consequently, the Arbitrator evaluated the circumstances of the public at large and in the construction industry, maintaining that his assessment of COVID-19 risk and his decision “should not be made in a vacuum.”

As part of the analysis, the Arbitrator noted the following:

· Since COVID-19 can spread through respiratory droplets, and due to the nature of the work, employees could not maintain social distancing.

· The risk of COVID-19 spread was increased by the nature of the construction industry, where employees often moved between job sites.

· There was a tangible risk of COVID-19 spread, while the employer had numerous outbreaks on their sites, in addition to cases of apparent workplace transmission, while two of their sites were partially shut down by Toronto Public Health, and COVID-19 remained a threat to the public at large.

· Measures were taken to protect the privacy and dignity of the individuals tested.

· The screening test was minimally invasive.

· There was no evidence that the mitigation efforts in place had “significantly reduced” transmissions, or that all workers where testing had been performed were working in an “open air” environment.

Furthermore, the Arbitrator pointed out that in a related COVID-19 testing case, the analogy of drug and alcohol testing was rejected since intoxicants are not infectious.

As a result, the Arbitrator ruled that the Policy was reasonable when weighing the intrusiveness of the test against the Policy’s objective of preventing the spread of COVID-19.

Furthermore, according to some legal experts, compulsory rapid COVID-19 testing in the workplace can be considered reasonable if the nature of the workplace is such that the risk of COVID-19 transmission is real, as well as if there is a risk of transmission to the public, and steps are taken to protect the privacy and dignity of those tested.