The rights and obligations of workers and employers in the pandemic continue to raise new and novel issues. While many businesses encourage or require their staff to work from home, there are plenty of industries which still require work in-person, especially in deemed essential services (which differ based on jurisdiction).
A particularly challenging area has been long-term care and retirement homes, where several outbreaks have been observed across the country. Not only do these facilities have especially vulnerable residents, but they are often busy and understaffed relative to the work involved and the needs of the facility. Employers continue to have health and safety obligations to staff and residents, and struggle to identify the safest ways to maintain business continuity.
A recent Ontario arbitral decision in Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada concluded that a policy of mandatory testing for all staff at a retirement home, requiring a nasal swab test every two weeks, was reasonable.
The employer adopted a provincial policy for long-term care homes and applied it to their retirement facility. There are different laws that apply to nursing homes, long-term care homes, and retirement facilities. Retirement homes are provincially regulated in Ontario by the Retirement Homes Regulatory Authority (RHRA) under the Retirement Homes Act, 2010, whereas nursing homes are regulated under the Long Term Care Act, 2007.
This provincial policy was intended to provide recommendations to the sector, but the employer made components of it mandatory for all staff. The facility was connected to a nursing home, and some of the staff were responsible for activities such as laundry from the nursing facility. The nursing home already had pandemic-specific legal obligations arising out of Section 77.7 of theHealth Protection and Promotion Act (HPPA).
The policies implemented by the employer required mandatory PPE use, change of clothing at the start and end of shifts, and COVID-19 testing by nasal swab. Proof of testing was required by management, and when some staff objected, the employer indicated that these staff would be required to use PPE for their entire shifts.
The employer also had a generous accommodation policy, applied on a case by case basis, and allowed employees to utilize a third-party testing as well.
The union grieved the practice, claiming it was an unreasonable surveillance under the Supreme Court of Canada’s decision on drug and alcohol testing in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., as an unreasonable exercise of management rights. The testing every two weeks was claimed to be an intrusion of privacy and a breach of dignity, and no compelling justification could be provided to justify the intrusion. No documented cases of COVID-19 were found among the staff.
Because the consequence of compliance was disciplinary, the arbitrator found the policy to fall under the collective agreement. She dismissed the grievance however, on the basis that the policy was reasonable in the circumstances,
While the Union’s reliance on drug and alcohol testing cases is a reasonable starting point for the analysis – weighing the privacy breach against the goals of the policy – clearly controlling COVID infection is not the same as monitoring the workplace for intoxicants and I so find. 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.
But, most importantly, while the privacy intrusion is arguably comparable, in both cases, the factors to be taken into account in order to determine the weight to be given to the need for COVID testing as compared with drug and alcohol testing, is not. COVID is novel, thus its name. Public health authorities are still learning about its symptoms, its transmission and its long-term effects.
What is known is that it is highly infectious and often deadly for the elderly, especially those who live in contained environments.
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. 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.
Although testing is not perfect and is not a panacea, and the employer was not testing the residents, the arbitrator found that this was not a surveillance tool or of limited utility,
A negative test may be of limited value to the individual employee tested but it is of high value to the Home; and a positive test is of immense value to both the employee and the Home. A positive test leads to identification, isolation, contact tracing and the whole panoply of tools used in combatting the spread of the virus. Arguably, the only way the testing could be improved is to increase its frequency, but that is not a proposal likely to have legs in the bargaining unit.
Preventing the spread of the virus among vulnerable populations like retirement homes, long-term care facilities, and nursing homes is a public policy that should be encouraged, and has utility to a broader segment of the population than the residents or staff involved. Residents who contract the virus are often transferred to hospital facilities, which are increasingly becoming overwhelmed.
Although such tests may be uncomfortable and perceived as unnecessary, the uncertainties about the virus make them yet another tool we can use to prevent its spread, especially at the front lines.