On June 10, 2021, a labour arbitrator in EllisDon Construction Ltd. v Labourers' International Union of North America, Local 183 found that the employer’s mandatory Rapid COVID-19 Antigen Screening Program (the “Program”) was reasonable. Arbitrator Kitchen held that determining the reasonableness of the Program required balancing of the employer’s health and safety objective of preventing the spread of COVID-19 and the intrusiveness of the rapid test.

FACTS:

In late February of 2021, EllisDon implemented the Program as part of a pilot being led by the Ontario Ministry of Health, whose aim was to “reduce the spread of COVID-19 and support essential and vulnerable workplaces to safely stay open”. The pilot required all individuals attending specified EllisDon job sites to submit to rapid testing to gain access to the worksite. The worksites subject to rapid testing were decided based on defined criteria related to COVID-19 infection statistics and trends.

The “Test”

EllisDon implemented the Abbot Panbio COVID-19 Antigen Screening Test (“AP Test”) – a throat and bilateral lower nostril swab. Health care professionals have regarded the AP Test as a more comfortable method of performing preliminary screening. The AP Test was conducted two a week at the designated EllisDon worksites by a contracted third-party nursing firm. The testing took approximately fifteen (15) minutes to yield results, and employees were paid for the period between the testing and receipt of their results. In accordance with Ministry of Health guidelines, the AP Test was not treated as a diagnostic tool and was only used on asymptomatic individuals for screening purposes only.

Personal Information

Neither EllisDon nor the nursing firm recorded or retained personal health card information as part of the trial.  The name and contact information of individuals undergoing the AP Test was required solely for notification purposes. The information collected was only disclosed and used by the nursing firm and EllisDon management personnel to communicate results to individuals that received testing as well as local public health units.

Refusals

Individuals were entitled to refuse to submit to the AP Test; however, non-participation resulted in the individual being denied access to the worksite. If a subcontractor’s employee refused to submit to the AP Test and was denied access, the subcontractor would make best efforts to reassign that employee to a different site where it performed work, but if no such site was available, the refusing employee would be laid off.

Test Results

If the AP Test was negative, the individual was returned to work. 

A positive AP Test resulted in:

• the testing team communicating the results to the individual and the company’s health and safety coordinator;
• the coordinator notifying the company’s “Healthline” and the commencement of contact tracing;
• any employees who were in close contact with the COVID-19 positive individual would be required to self-isolate;
• the local public health unit would be notified of the positive AP Test result; and,
• the individual would be required to have a follow-up, confirmatory, lab based polymerase chain reaction (PCR) test within 24 hours at a COVID-19 Assessment Centre. The individual was prohibited from accessing the worksite pending the outcome of the PCR test, required to self-isolate until the result was available, and required to advise their employer of the result.

Additional Health Measures

EllisDon had also implemented other COVID-19 safety protocols that operated in conjunction with the Program, such as a screening questionnaire, handwashing, personal protective equipment (PPE), an enhanced cleaning and disinfection program, and taking employees’ temperature before they accessed the worksite.

Results

By May 12, 2021, over 100,000 tests were conducted, producing 179 positive results. Of which, 118 were confirmed as positive and 20 were false positives. The remaining 41 preliminary positive results had not been confirmed by the date of arbitration.

The Grievance:

The union,  Labourers International Union of North America Local 183, grieved that EllisDon and Verdi (a subcontractor) had breached their respective collective agreements by implementing the rapid testing. 

The Union’s Position

The union took the position that the Program was an unreasonable exercise of management rights as the impact on employee privacy was more severe than the expected gains. It also noted the risks of COVID-19 transmission had already been significantly reduced through less intrusive measures.

The Outcome:

Arbitrator Kitchens specifically noted:

• COVID-19 can spread through respiratory droplets, and given the nature of the work and the size of the projects, employees could not maintain social distancing;
• The risk of COVID-19 spread was increased by the nature of the construction industry, since employment is transitory and employees regularly move between job sites and employers.Furthermore, on large job sites, employees of one subcontractor can easily infect employees of another subcontractor putting other employees and their families at risk;
• The risk of COVID-19 spread was not hypothetical or speculative.Toronto was in lockdown or subject to a stay-at-home order since November 20, 2020.The employer had numerous outbreaks on its sites, cases of apparent workplace transmission, two of its sites were partially shut down by Toronto Public Health, and COVID-19 remained a threat to the public at large;
• Significant steps were taken to protect the privacy and dignity of the individuals tested;
• The AP Test was minimally invasive compared to the laboratory-based PCR test; and,
• 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.

In considering the union’s analogy between drug testing and COVID-19 screening, the Arbitrator determined that controlling COVID-19 infection is not the same as monitoring the workplace for intoxicants. He noted, “They are different in kind. Intoxicants are not infectious. COVID testing reveals only one piece of information: the employee's COVID status. Being intoxicated is culpable conduct: testing positive is not.”

Ultimately, the Arbitrator concluded his analysis by finding the interest of the employer to prevent the spread of COVID-19 outweighs the union’s concern of intrusiveness, and as result the Program was deemed reasonable.  

What does this mean moving forward?

The EllisDon case provides some support for the adoption of mandatory rapid COVID-19 testing in certain circumstances. The  assessment of whether an employer has exercised their management rights reasonably is contextual, and will depend on:

• the nature of the employer’s work and/or workplace. Notably, does it create a genuine risk of COVID-19 transmission through the workforce or the public at large, particularly considering other measures in place; and,
• whether the employer has implemented steps to reduce the sense of intrusion felt by those being tested.

The foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyers by email or telephone.