In Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada (2020 CanLii 100531), a labour arbitrator rejected the union's challenge to the employer's COVID-19 employee testing policy. The arbitrator dismissed the grievance and found that the employer, a retirement home, had implemented a reasonable policy to prevent the spread of COVID-19 among its residents.

COVID-19 employee testing policy

Despite the fact that no COVID-19 outbreak had occurred at the employer's retirement home, it sought to introduce an employee testing policy to proactively ensure the safety of its residents. The policy stated that:

  • all staff must participate in ongoing COVID-19 surveillance testing conducted by nasal swab;
  • testing would be done every two weeks and include all individuals working in the retirement home (eg, front-line workers, management, food service workers, contracted service providers, basic aids and guest attendants);
  • medical accommodations would be addressed on a case-by-case basis; and
  • a refusal to participate in the testing would result in the employee being held out of service, until such testing was undertaken.

The policy mirrored the Ontario government's recommended testing protocols for retirement homes.

The union opposed the employer's policy on the basis that it amounted to an unreasonable exercise of management rights and was tantamount to COVID-19 surveillance testing; therefore, it was a breach of employees' privacy rights. The union argued that because an employee tested on one day could turn out to be positive the next day, the policy was ineffective in achieving its desired goal. Finally, the union argued that the testing was unnecessary given that the employer had implemented all of the other government-recommended COVID-19 prevention measures with success.

Grievance dismissed

The arbitrator readily rejected the union's arguments and adopted the employer's arguments in favour of the policy. Primarily, the arbitrator found that:

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.

Moreover, the arbitrator agreed with the employer that the policy was reasonable even though no COVID-19 outbreak had occurred at the retirement home because "given the seriousness of an outbreak, waiting to act until that happens, is not a reasonable option".

The arbitrator also disagreed with the union that the policy was a surveillance tool to be used by the employer, stating:

I strongly disagree with the Union and/or Ms. McColgan characterizing testing as a limited surveillance tool. That is not accurate. 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 combating the spread of the virus.

Guidance for employers

As is the case with many workplace policies that are grieved by a union, this case was argued under what are commonly known as the 'KVP principles' (which were endorsed by the Supreme Court in a 2013 decision).

The KVP principles set out the following requirements that must be met where employers seek to unilaterally introduce a workplace rule (or in this case, a policy):

  • it must be consistent with the collective agreement;
  • it must be reasonable;
  • it must be clear and unequivocal;
  • it must be brought to the attention of the employees affected before the employer relies or acts thereon;
  • if the rule is relied on to justify discharge, the employee must have been notified that a breach of the rule could result in dismissal; and
  • the employer must consistently enforce the rule.

Following the KVP principles, particularly in situations where employers are seeking to introduce an important or potentially controversial COVID-19 policy, will help to ensure that employers' workplace rules are enforceable.

As was the case in Garda Security Screening v IAM, District 140 (Shoker Grievance) ([2020] OLAA No 162), where an arbitrator upheld the dismissal of an employee who had failed to follow their employer's and the public health guidelines regarding self-isolation, the employer's reliance in Caressant Care on public health guidance to create a COVID-19 employee testing policy was found to be reasonable (for further details please see "Labour arbitrator finds that employee's failure to follow COVID-19 guidelines is just cause for dismissal").