Now that mass vaccinations are underway throughout Canada, there is hope that a return to the office will be possible in the near future. Getting the team back together is great news for most employers, but the pandemic is still here and business owners want to know how to keep their employees – and themselves – safe.
Regardless of the model chosen for their return, whether workers will be full-time or part-time or flexi-time, in all cases employees will be working together in some manner – socializing, brain-storming, and meeting face-to-face. And unless your employees are gardeners or surfers, they will also be inside, under the same roof – and as an employer, you are obligated to take every reasonable precaution to keep everyone safe.
But determining what is “safe” in the COVID-19 era is not simple. There is no precedent for this pandemic. In order to ensure the safety of your workplace, can you insist that employees be tested for COVID-19? Can you ask them to be vaccinated?
The answer is: it depends.
High-Risk Companies
In workplaces where the possibility of transmitting the virus to vulnerable people is high, it may be possible to insist on mandatory COVID-19 testing for your employees because the consequence of not doing so can be serious. In one recent case (Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada), a retirement home in Ontario asked its staff to be tested every two weeks – and if they refused, they could be sent home until they agreed to abide by the policy. The workers, represented by a union, believed the mandatory tests were too invasive and constituted a breach of privacy, among other grievances.
Given the particular nature of a retirement home, where employees are in close proximity to the residents, the arbitrator in this case sided with the employer, stating that the compulsory COVID-19 testing was reasonable, given the infectious nature of the disease and the grave risk to those involved. Alternative safety measures like working from home, relatively simple to implement in other industries, are not possible in situations where people need to be cared for. So a compulsory COVID-19 test is considered a reasonable demand for the good of everyone in the workplace.
This Ontario case raises several interesting points for employers. If compulsory COVID-19 testing is reasonable in a retirement home, then it may also be reasonable in other situations where the staff is in constant close proximity to vulnerable people, like long-term facilities. Mandatory employee COVID-19 testing may also be deemed reasonable in settings where vulnerable people are not necessarily involved, but there may be a high rate of transmission between the workers, such as shelters and meat-processing plants. As more cases come before the courts, the clearer the guidelines will become.
And, it should be noted, there are circumstances where the government has the power to demand its population be vaccinated (Quebec’s Public Health Act, for example), and if that order should one day come into effect, this will likely make compulsory vaccination policies easier to introduce at work. At this time, no such mandatory order exists in Canada.
What if you don’t own a high-risk company?
If you run a more traditional company, where your employees are surrounded mostly by one another in a regular 9am-5pm setting, things become a bit more complicated. In these cases, you have safety options available to you that are not as invasive as a COVID-19 test or vaccination. Measures such as mandatory face masks, divided work areas, flexible work hours, better ventilation and letting employees work entirely from home, all of which may demonstrate that you are taking reasonable measures to provide a safe workspace.
And since you can choose these less intrusive ways to protect your employees, mandatory workplace COVID-19 testing may not be considered reasonable given the infringement upon a worker’s right to privacy (among other important rights). This is a topic that was addressed by the Supreme Court of Canada in 2013.
Aside from privacy concerns, there are other issues that employers should be aware of when it comes to a mandatory COVID-19 testing policy. For example, there may be constructive dismissal concerns (“take this test or else”), and the tests may be seen as discriminatory – there may be some who refuse for religious purposes. Each one brings up specific concerns for an employer and so it is advisable to seek legal counsel before drafting or implementing a mandatory testing policy of any kind at this time.
The Take-Away
A plan from LegalShield means a licensed lawyer can advise you on mandatory COVID-19 testing or vaccination within your particular industry. They can also advise you on other written health and safety policies for your workplace and help you navigate the complicated and ever-changing workplace regulations in a pandemic and beyond.
Articles on the LegalShield.ca website are for informational purposes only and do not constitute legal advice or opinion in any manner. Laws mentioned in the articles vary from province to province. Any links to third-party sites in our articles are for general information purposes only and LegalShield is not affiliated with, nor does it endorse, the content of linked sites. It is always advisable to seek legal counsel – and LegalShield can help.
