Background

Residents of the retirement home live independently with minimal to moderate support. There were no positive cases of COVID identified among staff, management or residents. The retirement home advised staff that bi-weekly COVID testing and proof of testing would be mandatory. The testing policy provided, in part:

1. All staff are to participate in ongoing COVID-19 surveillance testing conducted by nasal swab.
2. Testing will 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 aides and guest attendants).
3. Medical accommodations will 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.

The union filed a grievance relating to the testing, and pending the arbitrator's award, staff that objected to the testing were permitted to continue to work if they donned additional PPE. In support of its grievance, the union argued primarily that, at its core, the policy was an unreasonable exercise of management rights. The hearing was held in September 2020. In addition to relying on alcohol and drug-testing cases to argue that the testing policy was a serious and unjustified invasion of privacy, the union argued:

• The employer had not established that the testing was required, given all the safety measures in place and the absence of even one case of COVID in the retirement home;
• The policy was unfair and incoherent and could not achieve its purpose because the residents were not going to be tested;
• Testing was mandatory without the requirement of symptoms as a triggering event; and
• Testing does not prevent infection for the employee tested.

Decision of the Arbitrator

The arbitrator dismissed the grievance. Although he considered the union's reliance on drug and alcohol-testing cases to be a reasonable starting point, the arbitrator stated that controlling COVID infection was not the same as monitoring a workplace for drugs and alcohol, which are not infectious. Furthermore, he noted that while testing positive for drugs and alcohol "is culpable conduct," testing positive for COVID is not. Emphasizing that COVID is "highly infectious and often deadly for the elderly, especially those who live in contained environments," the arbitrator concluded that the intrusiveness of the testing was reasonable when weighed against the need to prevent the spread of COVID. The arbitrator concluded it was not reasonable (i) to wait until an outbreak occurred given the seriousness of an outbreak; or (ii) for the test to be triggered by an employee having symptoms because a large contingent of spreaders would be missed. Finally, the arbitrator stressed the "immense value to both the employee and the Home" of a positive test, namely "identification, isolation, contact tracing and the whole panoply of tools used in combatting the spread of the virus."

Bottom Line

It is significant that the mandatory testing policy was upheld as reasonable in a retirement residence where residents live more independently than more vulnerable residents of a nursing home, but are still elderly and living in a contained environment. The recent dramatic rise in second-wave COVID infection rates, the existence of a new variant that seems to be more infectious, and the emphasis on testing by Public Health authorities may well make it easier for adjudicators to decide that the intrusiveness of mandatory COVID testing is generally reasonable when weighed against the need to prevent the spread of COVID.

Note: This a reprint of an article by Rhonda B. Levy and George J.A. Vassos of Littler Mendelson.