As the COVID-19 pandemic concludes its first year, we have seen a slow release of decisions assessing infectious disease prevention policies. From the applicable jurisprudence, a central theme has emerged: an employer’s duty to take every precaution reasonable in the circumstances for the protection of a worker (i.e., the “precautionary principle” under section 25(2)(h) of the Occupational Health and Safety Act) will be interpreted expansively where catastrophic injury and loss of life may arise from an unknown hazard.
Mandatory COVID-19 Testing is Found to be Reasonable
In Caressant Care Nursing & Retirement Homes v. Christian Labour Association of Canada, 2020 CanLII 100531 (ON LA) (“Caressant Care”), the employer operated an independent living facility for seniors. Due to its physical connection to a nursing home, the employer’s facility was subject to Directive #3 of the Chief Medical Office of Health. This directive prescribed, inter alia, active COVID-19 screening of all staff and visitors entering long-term care homes.
In June 2020, the employer advised its employees that it would begin conducting biweekly COVID-19 testing and that employees would have to provide management with proof that they had been tested. Any employees who chose not to comply with the testing requirement would be required to wear full personal protective equipment (“PPE”) for the entirety of their shifts.
The Christian Labour Association of Canada (“CLAC”) filed a group grievance challenging the COVID-19 testing policy. CLAC argued that the policy breached employee privacy and dignity by mandating a biweekly nasal swab, especially as there had been no cases of COVID-19 in the facility. CLAC also argued that the policy was unfair and would not achieve the purpose of COVID-19 prevention because residents of the facility were not subject to mandatory COVID-19 testing.
Arbitrator Dana Randall dismissed the grievance, finding that the employer’s policy was reasonable in the circumstances. The intrusiveness of requiring nose swabs to be taken every 14 days was outweighed by the policy’s goal of controlling COVID-19 infection.
A critical, if not determinative, factor in Arbitrator Randall’s analysis was the specific nature of COVID-19. In particular, public health authorities were still learning about the symptoms, etiology, and long-term prognosis of COVID-19. The only known characteristics of COVID-19 were that the virus was highly infectious, often deadly for the elderly population, and transmissible by asymptomatic individuals. In the circumstances, it was unreasonable to bar the policy’s implementation until after an outbreak had occurred at the home, or to restrict the policy’s application to only symptomatic employees.
The Paramountcy of Protecting Employee Health and Safety
Arbitrator Randall’s reasoning in Caressant Care follows in the footsteps of the April 2020 decision in Ontario Nurses Association v. Eatonville/Henley Place, 2020 ONSC 2467 (“Eatonville”).
In Eatonville, the Ontario Nurses’ Association (“ONA”) and its members sought an injunction requiring a number of long-term care homes to comply with COVID-19-related directives issued by the Chief Medical Officer of Health for Ontario. In particular, one of the disputed directives, Directive #5, established mandatory procedures for the supply and use of PPE, including the use of N95 facial respirators by employees of long-term care homes and hospitals.
The Court granted the injunction and ordered the long-term care homes to, inter alia, provide nurses with access to fitted N95 facial respirators and other appropriate PPE when such respirators or PPE were assessed by a point-of-care nurse to be required. In applying the established test for injunctive relief, the Court held that the balance of convenience favoured measures that prioritized the health and safety of medical personnel and their patients. Although the long-term care homes had questioned the propriety of allocating scarce PPE resources to ONA, the Court found that the nurses’ work benefited society at large and, therefore, the provision of adequate PPE would serve the interests of the wider community.
Like Caressant Care, the Court’s approval of the disputed health-and-safety measure was, in part, due to the fact that COVID-19 transmission routes were largely unknown. Because the precautionary principle applies even where the etiology of a workplace hazard cannot be established with scientific certainty, it was reasonable to require the wearing of N95 facial respirators if this would possibly prevent airborne transmission of COVID-19. Essentially, the Court’s decision prioritized the immediate protection of human life over the prevention of an eventual strain on resources.
Unknown Risks Likely Justify Stricter Health-and-Safety Measures
Caressant Care and Eatonville signal a departure from the recent, pre-COVID-19 jurisprudence on infectious disease prevention policies. For instance, in Sault Area Hospital and Ontario Nurses’ Association, 2015 CanLII 55643 (ON LA), Arbitrator James Hayes struck down a ‘vaccinate or mask’ policy that required healthcare workers to wear medical masks throughout the flu season if they had not been vaccinated for influenza that year. He found that the employer’s policy was intended to drive up vaccination rates and that there was no conclusive link between mask-wearing and protection against influenza. A similar award was issued by Arbitrator William Kaplan in respect of the ‘vaccinate or mask’ policy in St. Michael’s Hospital v. Ontario Nurses’ Association, 2018 CanLII 82519 (ON LA).
The distinguishing factor between the old and new jurisprudence appears to be the novelty (and, by extension, the unknown nature) of the infectious disease at issue. Arguably, in the early days of the pandemic, the scant research into COVID-19 mirrored the lack of scientific evidence found in the aforementioned ‘vaccinate or mask’ cases. Nevertheless, the mandatory measures in Caressant Care and Eatonville were deemed reasonable in response to COVID-19’s deadly nature but uncertain transmission routes. The reasoning from Caressant Care and Eatonville suggests that, when faced with an unknown danger, employers and unions may be justified in seeking more onerous health-and-safety requirements. This makes practical sense as, when human life hangs in the balance, there may not be time for workplace parties to research less intrusive prevention measures and comparatively assess the reasonableness of each.
So, what does this all mean going forward? In the short-term future, strict health-and-safety rules will likely remain expected and enforced, especially as Canada enters the anticipated third wave of the COVID-19 pandemic. As the public health situation gets under control, however, COVID-19-related policies could foreseeably loosen. One thing is for certain: in all cases, employers, unions, and employees would be best served by collaboratively developing robust and prompt solutions to protect workplace health and safety.
About the Author
Cassandra Ma is labour and employment legal counsel for Canada Post Corporation. Prior to joining Canada Post, Cassandra practiced labour and employment law with a leading management-side firm in Toronto. She specializes in the areas of collective agreement interpretation, grievance arbitration, disability management, and human rights. She is also the 2020-2021 vice-chair of the OBA’s Workers’ Compensation Section.
This article was originally published on the OBA’s Labour and Employment Law Section articles page.