Yes, they can – at least for workers in Long-Term Care (LTC) and retirement homes. 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. Effected 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 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. They compared the measure to alcohol/intoxication testing and took the position that the policy was overbroad – 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.

The arbitrator dismissed the grievance and upheld the nasal swab policy of Caressant Care as reasonable. The policy was justifiable given the seriousness an outbreak presents to Retirement Home and LTC residents.

The decision acknowledged that “what is known is that it (Covid-19) is highly infectious and often deadly for the elderly, especially those living in contained environments.”

The employer’s policy was found to be clear and unequivocal, it was brought to the attention of employees affected before it was implemented, and accommodation was offered to employees on a case-by-case basis to employees who had challenges with the nasal swab test. The policy also permitted employees to be tested by third parties outside of the working hours with compensation.

The arbitrator noted that while the testing policy was not perfect or a panacea, it could not be characterized as a “surveillance tool” as was argued by the union, nor could the policy be compared to alcohol/intoxication testing polices.

As health care organizations continue to look for ways contain the spread of COVID-19 within their organizations, this decision may serve as a guide for what type of policy can be deemed reasonable. For workers – particular those working in Longterm care, retirement homes or other congregate living facilities – repeated COVID-19 screening tests will likely remain a continued reality during these extraordinary times.

Carina Lentsch is an Ontario health lawyer. She assists regulated health professionals in College, privacy and workplace matters. The pandemic inspired her to start her own virtual law practice: ,,ACL LAW,.

The information shared in Carina’s articles does not constitute legal advice. If you have any questions about your legal and professional obligations, do not hesitate to reach out to speak with a lawyer about your specific situation.