This article is part 1 of our 3-part COVID-19 Mental Health Training 2021 Series.
The power of the COVID-19 virus to change our lives and to alter how our workplaces are structured seems to have few limits. At the very least it is fair to say that few people could have imagined the changes 12 months ago that we have all witnessed. Here is another example from a recent ruling by a labour arbitrator that should be considered by employers and employees both.
Past rulings in Canadian labour relations have modified the ability of employers to demand random workplace testing for drugs and alcohol. The courts have signaled that even though industrial work settings can be very dangerous places if workers arrive onsite with impairment from either drugs or alcohol, employers did not have the right to employ an arbitrary or random testing strategy. Instead, the courts mandated that an employer must have a reasonable suspicion of impairment before conducting any testing. Faced with a difficult burden of proof as to what constitutes reasonable suspicion, many safety conscious employers turned to strengthening their workforce education programs to provide frequent reminders to employees about the danger of being impaired while on duty.
However, COVID-19 arrived to once again turn things upside down! A recent grievance filed by CLAC (Christian Labour Association of Canada) on behalf of members working in an Ontario long-term care home has called into question the principle of no arbitrary testing in the workplace. The CLAC grievance was directed at a policy by the employer to demand regular COVID-19 testing of the workforce. It is important to note that while CLAC supports the goal of safeguarding the workplace and the residents in the care home from COVID-19, they questioned the efficacy of testing the workers for COVID-19 every two weeks when residents were free to come and go as they pleased without any testing. Other factors such as the availability and frequent use of PPE were part of this grievance, but the fundamental question was balancing workers’ rights against privacy invasions.
The arbitrator ruled against the CLAC grievance saying, “In my view, when one weighs the intrusiveness of the test—a swab up your nose every 14 days—against the problem to be addressed—preventing the spread of COVID-19 in the home—the policy is a reasonable one.” A reasonable interpretation of the arbitrator’s ruling is that workplace health and safety are issues of such seriousness, that forcing an employee to undergo a test that is personally invasive is outweighed by the potential benefits.
The Decision
Arbitrator Randall emphasized the novelty and infectious nature of COVID-19 and distinguished it from previous decisions on mandatory breathalyzers for alcohol, citing the rate of transmission and the gravity of risk of death to residents from a COVID-19 outbreak in a care home. Arbitrator Randall also found the privacy intrusion was sufficiently mitigated with biweekly testing and was outweighed by the risks of COVID-19 transmission in an elderly population. He found that the rule was justified in giving rise to disciplinary action, as it was:
- consistent with the collective agreement
- clear and unequivocal
- brought to the attention of the employees before the employer acted on it
- contained clear notice that non-compliance of the rule would lead to discharge
- enforced consistently since its introduction
- reasonable
The arbitrator ruled that the testing policy was not a “surveillance tool” or of limited utility, underscoring the importance of a positive COVID-19 test result in the workplace in preventing the spread of COVID-19. Finally, Arbitrator Randall stated that the policy was also reasonably accommodating. For instance, when a staff member could not tolerate a nasal swab, CCRH Woodstock used a throat swab instead. For workplaces, this ruling has the potential to become precedent for other similar (non-COVID-19) circumstances and spotlights how important both employers and employees should regard health and safety. The two avenues that companies and workforces must walk together to achieve the best outcomes are testing and training. Combined they are the solution of a successful safe workplace strategy that does require constant updating, reinforcement and implementation to ensure the workplace continues to strengthen going forward.
Corridor Interactive has been proud to be the provider of training solutions for CLAC to support their industry leading Alcohol & Drug Awareness Training and “Creating a Safe and Respectful Workplace” program that includes diversity and inclusion and workplace violence. These training products are part of the guiding principle of how CLAC operates. Based on values of respect, dignity, and fairness, CLAC is committed to building better workplaces, better communities, and better lives.
