COVID-19: Surveillance Testing Policy Upheld in Congregate Care Setting

In a recent labour arbitration decision, Arbitrator Dana Randall upheld a unilateral policy of  bi-weekly mandatory surveillance test for COVID-19 instituted by Cressant Care Nursing and Retirement Homes. (See Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada, 2020 CanLII 100531 (ON LA).)

The Policy

The grievance challenged the employer’s decision to follow the Ontario government’s request or recommendation for retirement homes imposing a mandatory surveillance testing program, which included the following elements:

1. 1. All staff were to participate in ongoing COVID-19 surveillance testing conducted by nasal swab.
   2. Testing was to be done every two weeks and include all individuals working in the retirement home (e.g., front-line workers, management, food service workers, contracted service providers, basic aids and guest attendants).
   3. Medical accommodations were to be addressed on a case by case basis.
   4. A refusal to participate in the testing would result in the employee being held out of service, until such testing was undertaken (which the arbitrator found to be disciplinary in nature).

Factors Supporting the Policy

In assessing the validity of the program, the arbitrator reviewed the prevailing case law in relation to mandatory employee testing – specifically the seminal decision in KVP (see KVP Co. Ltd. and Lumber & Sawmill Workers’ Union, Local 2537 (1965), 16 L.A.C. 72 (Robinson) and  C.E.P, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34, which was an alcohol testing case. 

KVP holds that a rule introduced by the employer without the Union’s assent will give rise to discipline only if the rule meets the following criteria:

1. 1. 1. it is consistent with the collective agreement;
      2. it is reasonable;
      3. it is clear and unequivocal;
      4. it was brought to the attention of the employee(s) affected before the employer attempts to act on it;
      5. where the rule is invoked to justify discharge, the employee was notified that a breach of the rule could result in discharge and;
      6. the employer has enforced the rule consistently since its introduction.

As indicated above, the arbitrator held that holding a staff out of service for refusal to participate in testing was “discipline” and therefore the criteria set out in KVP were relevant, and that the employer’s program met these criteria.

Importantly, the Union in this case attempted to argue that the testing in question was an unreasonable imposition on the privacy of staff which was not outweighed by the policy goals of the testing program.  The union compared testing for COVID-19 to testing for intoxicants in the workplace.  Arbitrator Randall rejected this argument and recognized the clear distinction between controlling COVID-19 infection and monitoring workplace intoxicants.   Arbitrator Randall stated:

“[W]hile 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.

In finding that surveillance testing of asymptomatic staff was reasonable and necessary Arbitrator Randall quoted Anthony Fauci as saying  “If you just test people who are symptomatic, you’re going to miss a very large contingent of the spread of the infection in the community.”

Arbitrator Randall acknowledged that while the testing program was not perfect (notably because resident testing was not mandatory), it has real value as a surveillance tool.  While a negative test may be of limited value to the individual employee tested, it is of high value to the agency; and a positive test is of immense value to both the employee and the agency.  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.  As a result, the grievance was dismissed.

Application

This case affirms the legitimacy of mandatory COVID-19 testing policies in certain settings.  We note that a key distinguishing factor for Developmental Services (DS) agencies and other congregate care settings is that this policy was implemented on the recommendation of the government.  While the arbitrator did not rely on that recommendation as a basis for upholding the testing policy, the fact that the government has not seen fit to recommend or direct mandatory testing outside of long-term care and retirement home settings could be used by unions challenging mandatory testing policies outside those sectors.

On the other hand, the factors supporting testing as outlined by Arbitrator Randall are arguable equally applicable in the DS Sector where the principle (if not only) source of potential contagion is the staff members working there.  The fact that recommendations and directives to a broader range of congregate care settings haven’t previously been addressed is potentially putting vulnerable people at risk.

As outbreaks continue to mount in the DS Sector and in the community at large, the need for surveillance testing in congregate care settings for vulnerable people (including people with intellectual disabilities) is becoming increasingly evident.   And yet, the government remains silent.  It’s time for the government (particularly the Ministry of Health and the Ministry of Children, Community and Social Services) to provide guidance and recommendations on surveillance testing to the sector keep people with disabilities, support workers, and their families safe.