A recent arbitration decision from a unionized construction workplace has upheld a policy imposing rapid antigen testing for COVID-19: see Ellisdon Construction Ltd. v Labourers’ International Union of North America, Local 183, 2021 CanLII 50159 (“Ellisdon”) (O.N. Arb.) (Arbitrator Kitchen).
In Ellisdon, a construction union challenged twice-weekly rapid antigen testing as being an unreasonable intrusion on employee privacy. The Arbitrator dismissed the grievance. In finding the policy reasonable, the Arbitrator pointed to (amongst other factors) the severe and ongoing threat of COVID-19 in the province, the fact that the employer had minimized the intrusion by only swabbing the lower nose and throat (which remains useful with much less discomfort), and the measures taken by the employer to ensure employee safety and privacy while the tests are being taken.
While the construction sector is very different than the developmental services sector, this case nonetheless provides strong support for similar policies in our sector. The risk of COVID-19 is even greater in our circumstances, strengthening the rationale for such a policy. Moreover, similar protections for employee rights can be built into policies in our workplaces.
PooranLaw will continue to monitor legal developments related to COVID-19 testing policies. In the meantime, if you require legal assistance in drafting these policies, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
