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.