Covid Testing Policy Upheld as Reasonable

Written by Daniel Standing LL.B., Editor, published by First Reference

As every workplace is unique, there is no one-size-fits-all approach to dealing with COVID-19. While some workplaces have mandated vaccination, others took a slightly toned-down approach. In CKF Inc. and TC, Local 213 (COVID Testing), Re, 2022 CarswellBC 198, a British Columbia arbitrator examined and upheld a policy that required weekly testing for those who refused to be vaccinated.

Background

The employer in this case is in the business of manufacturing single-use food packaging products like egg cartons and foam meat trays that are commonly found in grocery stores. Its initial response to the pandemic was to require employees to wash their hands, mask and to practice physical distancing.

In April 2021, an outbreak occurred at the workplace, resulting in seven employees contracting COVID-19 and the local health authority shutting down the workplace. It was permitted to re-open several days later with a testing and vaccination clinic in place for employees. The policy that is at the heart of the dispute, in this case, was implemented in September 2021. The controversial element pertained to the requirement that unvaccinated employees undergo weekly testing-either on-site or off-site-at the employer’s expense. Twelve of CKF’s employees underwent the testing “under protest”, while one employee, LB, refused to be tested, so he was sent home without pay.

The union argued that the employer’s position was an unreasonable exercise of management rights since it trammeled the employees’ privacy rights by taking bodily substances. For its part, the company argued that the policy was a restrained approach given the interests at stake, especially when compared with the mandatory vaccination policies that other employers put in place.

The arbitrator’s decision

As with all vaccination policy cases, the determination of whether the employer’s approach is reasonable is highly contextual and fact-dependent. The arbitrator expressed reluctance to place too much weight on a pre-pandemic caselaw that developed in the context of a potential influenza outbreak or in relation to random drug and alcohol testing. Instead, the arbitrator preferred the line of reasoning that emerged from another COVID-19 policy case in which the arbitrator supported a more precautionary approach.

In this case, the nature of the employer’s operation was a significant factor. It was clear that the employer’s business was essential to food distribution. The April 2021 shutdown proved that the employer’s business was a “critical link” in the food distribution chain since the government helped it re-open within days of the outbreak.

Additionally, the arbitrator found that the unvaccinated pose a risk to the vaccinated. The risk of transmission created an elevated concern about employees getting sick, leading to increased absenteeism.

The arbitrator was critical of the union’s reliance on statistics which tended to show that vaccinated individuals were becoming infected at increasing rates. These statistics, the arbitrator said, were taken from a snapshot in time, and they did not reflect the disparity in infection rates between the vaccinated and unvaccinated throughout the pandemic. The employer was entitled to “err on the side of caution,” particularly in light of the current scientific agreement that unvaccinated people are at a higher risk of infecting other people, including those who are vaccinated.

The arbitrator also considered the impact of the policy on the employees’ interests, including the nature and degree of intrusion. He found that the policy accommodated employees in two ways: first, it allowed for accommodations in the form of an exemption for valid medical or religious reasons. Second, the policy allowed for testing as an alternative for those who did not qualify for an exemption. The discomfort of the test was found to be fleeting and trivial.

This was different than a situation of random drug and alcohol testing because there was no arbitrary component to who had to be tested. While an employer generally must adopt the least intrusive means to justify its intrusions into the privacy and bodily integrity interests of the employees, this was a case where the health risks were not speculative but were very real.

After touching on numerous arbitral awards in which similar policies were upheld as reasonable, the arbitrator adopted the comments of a different arbitrator who held that ultimately, the employees are not forced to undergo testing. They have a choice, albeit a difficult one. The policy was, in effect, a compromise that permitted the employer to respect its obligation to provide a safe workplace as a preventive measure.

Key takeaways for employers

This decision, rendered in late January 2022, provides employers with yet another example of arbitral support for taking reasonable preventive measures in the application of the precautionary principle found in occupational health and safety legislation.

As consistently seen in COVID-19 policy cases, context is everything. It is critical that employers implement such policies with a close eye on its actual needs and operations. If instead of marching in lockstep with what other employers have chosen to do by mandating vaccination, an employer implements a policy with built-in accommodations such as allowing for exemptions or minimally intrusive testing, it will probably stand a better chance of being found reasonable.