Caressant Care Nursing and Retirement Homes Limited (CCRH) Woodstock provides care and services to residents that live independently at their retirement homes in Woodstock, Ontario. The CCRH location had not identified any positive COVID cases among the residents, staff, or management. Shortly after the introduction of mandatory surveillance testing of all staff, the employee’s union, the Christian Labour Association of Canada (CLAC) filed a grievance on behalf of several members.
In June of last year, CCRH Woodstock management advised staff of a new policy requiring them to partake in bi-weekly COVID testing and provide proof to management. Participating staff would receive one hour’s pay and have hospital parking fees waved. The policy consisted, in part, of the following:
- All staff were to participate in ongoing COVID-19 surveillance testing conducted by nasal swab.
- Testing was to 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, care aids and guest attendants).
- Medical accommodations would be addressed on a case by case basis.
- A refusal to participate in the testing would result in the employee being held out of service, until such testing was undertaken.
In early July, several staff members expressed that they were unwilling to participate in the set out surveillance testing. They were required to wear full PPE while on shift.
A grievance, on behalf of a number of members employed at CCRH Woodstock, filed a grievance arguing that the surveillance testing was an unreasonable exercise of management rights.
During the grievance hearing in September, the Union drew from alcohol and drug testing cases. They argued the following:
- The policy is unnecessary given the employer has adopted mitigation strategies to which employees have complied to and have proven successful as CCRH had yet to identify a positive case in their facility.
- The majority of people in the facility are residents, who are not expected to partake in surveillance testing, making the policy is unfair and incoherent.
- The policy does not accomplish what it is set out to since an employee could test negative one day and be infectious the next.
- The policy is an invasion of employee privacy.
Management obviously disagreed and argued the following (the vast majority of which was adapted by the arbitrator in their decision):
- Controlling COVID is different that tracking workplace intoxicants.
- Testing positive for an intoxicant is a culpable behaviour, testing positive for COVID is not.
- The intrusion of a test is mitigated by the possible outcome – mitigating the spread of a deadly virus, especially so at a nursing home.
The Arbitrator’s Decision
Ultimately, the arbitrator dismissed the grievance.
Though the arbitrator understood the Union’s dependence on drug and alcohol testing cases, he recognized that unlike intoxicants, COVID is infectious and therefore should be controlled differently. More over, the factors that must be considered when determining the need for COVID testing are not comparable to those considered with drug and alcohol testing. As we have come to learn, those factors include its infectious nature and the threat it imposes to the lives of the elderly, particularly for the elderly living in contained environments. When weighing the importance to address COVID in the retirement home to the intrusiveness of the test, the arbitrator believed the policy was reasonable.
The arbitrator went on to disagree with the Union’s views that surveillance testing was a limited tool. He described surveillance testing to be highly valuable to both employees and CCHR as it leads to identification, isolation, contact tracing and overall prevention of the virus’ spread.
Original Case (courtesy of CanLII): https://www.canlii.org/en/on/onla/doc/2020/2020canlii100531/2020canlii100531.pdf
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