On June 10, 2021, Arbitrator Robert Kitchen dismissed a policy grievance challenging a COVID-19 rapid on-site testing policy implemented by EllisDon Construction Ltd. (“EllisDon”).  The company had required all individuals attending at affected job sites to be tested before gaining access to the worksites.  The policy was challenged by Local 183 of the Labourers’ Union as unreasonable.

EllisDon began the on-site testing as part of a pilot program being led by the Ontario Ministry of Health, which was later made available to other businesses.  The “Abbott Panbio COVID-19 Antigen Screening Test” used by EllisDon had been approved by Health Canada, and EllisDon complied with all other applicable government rules and guidelines.

Employees on the affected sites were tested twice per week.  The company decided which job sites would be subject to rapid testing based on the levels of community spread and case counts in the area, hot-zone locations, size of project, risk level for workplace transmission, critical infrastructure projects, and client requirements. Some of the job sites were very large and had 500+ construction employees.

The company had already implemented numerous COVID-19 safety measures, such as an enhanced cleaning program.  Testing was only conducted on individuals that had passed through other screening measures, including a questionnaire and temperature check.  EllisDon engaged healthcare professionals from third-party nursing firms to administer the testing.  Aside from the healthcare professionals, nobody was able to observe the testing or the results, and a number of hygiene measures were in place to prevent transmission during the testing.  Individuals being tested were required to provide their name and the name of their employer, as well as contact information, but this information was used only to communicate results to individuals that had received testing and local public health units.

Workers that tested positive were denied access to the site and required to undergo a confirmatory lab-based test at a public testing site.  Although they could refuse to undergo on-site testing, it would result in the denial of access to the site.

As of the date of the arbitration, there had been approximately 100,000 tests conducted as part of the policy.  Of the positive results, 118 were later confirmed by PCR test, and 20 were found to be false positives.

The Arbitrator considered evidence regarding the state of the COVID-19 pandemic, the contagious nature of the illness, and its impact on the health of individuals and workplaces in Ontario. In finding that the policy was reasonable, the Arbitrator noted the following:

• Members of several other trade unions had been tested without complaint.
• Due to the nature of construction work and the number of workers on site, social distancing was not always possible.
• Construction employees regularly move between job sites, which increases the risk of transmission.
• The testing was conducted in a hygienic and private manner.

In light of the steps taken by EllisDon to implement the policy in a minimally-intrusive manner, the Arbitrator concluded that any invasion of privacy was outweighed by the objective of preventing the spread of COVID-19, and on that basis the policy was reasonable. This decision is significant for Ontario employers that are considering or have already implemented rapid testing. Although this award was related to the construction industry specifically, it establishes that in the appropriate context, Ontario employers may implement reasonable COVID-19 rapid testing protocols to protect the health and safety of workers and the public.

If you have any questions about this topic, other COVID-19 related questions, or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer, including Chris Fiore and Erich Schafer whom were counsel on this case, or refer to the Firm’s COVID-19 website resources.