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Under the Ontario Health and Safety Act (OHSA) employers must take every precaution reasonable in the circumstances to protect the health and safety of workers – including protecting workers from hazards posed by infectious diseases like COVID-19.
As part of fulfilling this obligation, Ontario employers must already have in place their mandatory safety plan under which they assessed their workplaces to determine what is needed to protect the health and safety of their workers to minimize the risk of transmission of COVID-19. In doing so, many employers have implemented mandatory COVID testing and/or vaccination policies without which employees may not enter the physical workplace. The legalities of both such policies are still being worked out.
In context, these policies balance public welfare and safety against bodily integrity, medical privacy, dignity, and free will. A recent Nanos Research survey found that 53 per cent of Canadians over the age of 18 agree with mandatory vaccinations for people who can be vaccinated to stop the spread of COVID-19 variants; with another 21 per cent somewhat supporting it, 16 per cent opposing it, 8 per cent somewhat opposing it, and 2 per cent unsure.
Adding to the confusion, each province, territory, and the federal jurisdiction are constitutionally entitled to take their own approach to such policies, with some noting their intention to make it mandatory to show proof of vaccination to enter some public spaces (i.e., a vaccination passport), while others like Ontario ruling vaccination-passports out because: “We’re not going have a split society.” With all due respect, that ship has sailed with many holding strong opinions one way or the other.
Legally, most of the workplace ‘battles’ on such policies have been in the unionized context.
Recall in early 2021 in Christian Labour Association of Canada v. Caressant Care Nursing & Retirement Homes (“Caressant”) an arbitrator upheld an employer’s mandatory COVID-19 testing policy relying on the following factors as support for the need for COVID-19 testing in the employer’s retirement home:
- COVID-19 is novel and public health authorities are still learning about its symptoms, its transmission and its long-term effects;
- COVID-19 is highly infectious and often deadly for the elderly, especially those who live in contained environments; and
- Although an outbreak had not yet occurred in the home, given the seriousness of an outbreak, waiting to act until an outbreak occurred was not a reasonable option.
Weighing the intrusiveness of the test (a nose swab every 14 days) against the problem to be addressed (preventing the spread of COVID-19 in the home), the arbitrator held that the policy was reasonable.
Similarly in an arbitration decision from April 2021 in Unilever Canada Inc., v United Food and Commercial Workers, Local 175, the arbitrator relied on the following factors in upholding the reasonableness of the mandatory COVID-19 testing policy:
- the number of workers onsite and on the production lines;
- any prior or existing outbreaks or transmissions of the virus in the facility; and
- the available evidence linking such testing to effective prevention of COVID-19 transmission in the workplace.
Despite the fact that no outbreak had occurred at the facility, the grievance was dismissed citing the number of employees and the need to “err on the side of caution.”
In June 2021 the EllisDon Construction Ltd. v Labourers’ International Union of North America, Local 183 (“EllisDon”) decision was released. Therein the arbitrator dismissed LIUNA Local 183’s grievance challenging the employers’ mandatory rapid COVID-19 testing policy for gaining access to the workplace, finding that the policy was reasonable when weighing the intrusiveness of testing against the threat of and need to prevent COVID-19 during the “third wave” of COVID-19 cases in Ontario and emerging variants of the virus.
LIUNA unsuccessfully argued that: the testing was invasive and violated the grievors’ privacy; the rapid testing was “experimental” and produced false positive results; and the work site was “open air”, which minimized the risk of transmission.
Take-away: The reasonableness of an employer’s mandatory testing and/or vaccination policies in the specific workplace requires the balancing interests and the taking into consideration of such factors as: the number of workers onsite; the ability to implement other control measures (e.g., physical distancing); the nature of the services/work; the character of the customers; any history of outbreaks; any other relevant factors; and the seriousness of COVID-19.
There is not a one-size fits all answer.
Sheryl L. Johnson brings a proactive, creative, and vibrant attitude to her labour, employment and human resource law practice. Sheryl has extensive experience in representing clients in both the provincial and federal jurisdictions on all matters relating to employment and labour law, including for example construction labour law, employment related civil wrongful dismissal, human rights, and labour board litigation; privacy, governance, statutory and regulatory compliance, and executive compensation matters; as well as conducting workplace training and workplace investigations. Sheryl is also an avid educator and writer, including authoring a bi-weekly business column in The Niagara Independent and the text: Sexual Harassment in Canada: A Guide for Understanding and Prevention. Sheryl enjoys in her free time giving back to the Niagara community. She is a member of the WIN Council, Chair of the Board of Directors for the Niagara Jazz Festival, Vice-President of the Board of Directors for the YWCA Niagara Region, Secretary of Big Brothers Big Sisters of Niagara Falls Board of Directors, a board member of the Niagara Home Builders Association, and a board member of the Women in Construction group of the Niagara Construction Association.
