Case Comment: LTC Mandatory COVID Testing Policy upheld in Labour Arbitration

  • January 04, 2021
  • Carina Lentsch, ACL Law -

Health-care workers in long-term care (LTC) and retirement homes may be required by their employers to undergo COVID-19 testing. This was the decision of arbitrator Dana Randall in Christian Labour Association of Canada v Caressant Care Nursing & Retirement Homes, 2020 CanLII 100531 (ON LA). 

In this case, the Christian Labour Association of Canada (the “union”) challenged a policy of Caressant Care Nursing & Retirement Homes (“Caressant Care”), which required their employees to undergo mandatory nasal swab testing on a bi-weekly basis. Affected staff included front-line workers, management staff, food service workers, contracted service providers, basic aides and guest attendants. This policy was in addition to the requirement of all staff to wear masks (PPE).

The union filed a grievance on behalf of a number of its members, including nursing staff, and argued that the policy was an intrusion on employee’s privacy rights and a breach of their dignity, and that the employer had failed to provide sufficient justification for imposing the testing requirement. The union compared the measure to alcohol/intoxication testing, and took the position that the policy was overbroad and that mandatory testing should be limited to employees who were symptomatic.

Caressant Care's response was that testing was a measure recognized by both the Ministry and the medical profession as an important tool to control and track outbreaks of the virus, and the policy was reasonable in light of the current pandemic.