Written by David Wakely
In a recent case between Caressant Care Nursing & Retirement Home and CLAC, Arbitrator Randall examined the issue of requiring retirement home staff be tested for COVID every two weeks in order to work. Randall ruled that a Caressant rule was both reasonable and allowed under the collective agreement.
A group grievance was brought by members of CLAC working at a Caressant retirement home in Woodstock challenging an employer policy that mandated Covid testing for all employees. The evidence considered was largely contained in an agreed statement of facts. Each party also relied on a ‘will say’ statement of a witness with cross-examination.
The parties argued the matter as a matter of privacy in the context of the “KVP test”, an arbitral doctrine that holds employer rules to a standard of reasonableness. KVP was endorsed by the Supreme Court of Canada is C.E.P Local 30 v. Irving Pulp & Paper Ltd, 2013 SCC 34 (Irving). The test has six parts:
- It is consistent with the collective agreement
- it is reasonable
- it is clear and unequivocal
- It was brought to the attention of the employees affected before the employer attempts to act on it
- where the rule is invoked to justify discharge, the employee was notified that a breach of the rule could result in discharge and
- the employer had enforced the rule consistently since its introduction
Arbitrator Randall noted that criteria 3-6 were not contested by the union. That left Randall to examine the first and second criteria of KVP. He found “in this case the policy is consistent with the collective agreement, if it is a reasonable exercise of the employer’s management rights as set out in article 3 of the collective agreement.” This conclusion foreclosed any other challenge the collective agreement may offer and focuses the issue on whether it is a reasonable exercise of managerial authority.
The arbitrator found the following points supported that the authority exercised was reasonable:
- Controlling COVID infection is different from monitoring the workplace intoxicants
- COVID is new and there are unknowns
- COVID is infectious and deadly to older people
- The problem to be addressed is preventing the spread of COVID.
Having found that the rule was reasonable, the grievance was dismissed.
It is questionable whether Arbitrator Randal erred in his application of the KVP test. In weighing reasonableness of the mandatory testing requirement, Arbitrator Randall relied upon the need to control COVID infections, COVID’s novelty, and COVID’s lethality to find that a measure aimed at preventing the spread of COVID was reasonable even if it infringed on employee privacy.
The evidence of Ms. Vaughan, the employer’s witness, was that testing was an important tool for the control and tracking of outbreaks. In the decision, testing became an important measure to control COVID even in the absence of an outbreak in the facility. The evidence showed that testing had been ongoing for three months without detecting a single case. Testing at the home did not control COVID.
Arbitrator Randall notes the novelty of COVID.It is unclear how this fits into the analysis of what is reasonable. Although it could reasonably be used to justify an increased need for caution when setting policy.
The lethality of the virus is used to tip the scales in favour of reasonableness.This is at first a compelling point, but it does not withstand scrutiny. In the decision, it is the end of the inquiry rather than the beginning. The Supreme Court in Irving noted: “The dangerousness of a workplace is clearly relevant, but this does not shut down the inquiry, it begins the proportionality exercise.” (at para 4) In affirming the board’s decision in Irving the Court quoted the board: “In a word, on the evidence I heard, I do not conclude that any significant degree of incremental safety risk attributable to employee alcohol use has been demonstrated to exist in this workplace.” (at para 14)
If we were to replace alcohol use with COVID infection, it is far from clear how in a workplace with no degree of incremental safety risk attributable to employee COVID infection, it is a proportional response to mandate biweekly testing. At the time of the arbitration, according to public health data, there were 6 active cases of COVID in the community of Woodstock. The staff had already returned 420 negative tests. It was open to arbitrator Randall to find that this was a proportional response, but there was no such finding. The arbitrator did not embark on a fulsome proportionality exercise.
I think there are good reasons and even reasonable reasons to mandate employee testing. Testing may be a proportional response in outbreaks, in areas with high epidemic counts, or in areas where PPE is in short supply. The Ministry of Health left testing as a voluntary measure for retirement home employees. This set the standard in the industry. The Arbitrator rejected this standard without accounting for concerns about proportionality and went as far as to label the standard set by the Ministry of Health as “not a reasonable option”. COVID is scary and action is needed. Neutrals must not be governed by fear. They must follow the law and the facts. In this case, in my view, this decision does neither. But, despite the agreement of the parties, this is not exclusively a privacy issue.
Both parties accepted that the matter should be adjudicated on the privacy framework. The collective interests in not being forced to get swabbed do not fit entirely in that box. The desire to not be subject to a medical exam goes beyond privacy and into the realm of bodily integrity. A nasal pharyngeal swab is a controlled medical act. In Re Thompson and Town of Oakville, 1964 1 OR 122-133, a case about the forced medical examination of police officers, McRuer CJHC found, “The examination the officers were asked to submit to involved a disclosure to someone who was not their own physician of personal matters that one cannot be compelled to disclose without some particular statutory authority. There is statutory authority for certain medical examinations, but there is none in this case.” While the decision is clear that the examination may be adopted for a valid purpose, it concludes “if that is a wise thing the Legislature can provide for it.” The Legislature has provided a number of regulations relating to retirement homes under the Reopening Ontario Act; mandatory testing for staff of retirement homes is not included among them.
Employee testing is going to be a live issue for the foreseeable future. The collective agreements of individual employers and unions are a poor substitute for considered clear legislation when it comes to the detection and response to COVID 19 across a number of sectors.
David Wakely, “Arbitrator: Employees Must Get Swabbed for COVID” Canadian Law of Work Forum (16 December 2020): http://lawofwork.ca/?p=13114