'The arbitrator was acutely aware of the potential of this being a landmark decision, so it was drafted very carefully'
A B.C. arbitrator has found an employer policy unreasonable in requiring employees who opted to pay for rapid COVID tests, rather than disclose their vaccination status.
It was a straightforward determination, given that the employer admitted that it intended to influence employees’ vaccination decisions with the requirement, says Michael Penner, a labour lawyer at Kent Employment Law in Victoria.
“There are a few telling points, the most important of which is that the employer admitted that they had created this policy as a disincentive for people not to be vaccinated,” says Penner. “They had deliberately tried to make it onerous.”
Finning Canada is a dealer of Caterpillar construction equipment based in Edmonton, selling equipment in Alberta, B.C., Saskatchewan, Yukon, and the Northwest Territories. When the COVID-19 pandemic arrived in Canada, the provincial governments in B.C. and the other provinces where Finning operated deemed its services to be essential to ensuring critical infrastructure and support services stayed safe and operational.
In October 2021, the company implemented a COVID-19 vaccination disclosure policy to take effect on Nov. 22. The policy required employees to either disclose that they had been fully vaccinated against COVID-19 or provide proof of a negative rapid antigen test (RAT) at least 72 hours before entering Finning property. Employees who opted for the RAT had to pay for the test, take it on their own time, and use one of two specified providers.
RATs from the approved providers cost between $30 and $55 per kit and about $39 for an online video call appointment with a certified test observer, which lasted 15 to 20 minutes. Results of the RAT were usually received within one hour.
Union challenges policy
By Nov. 22, 27 Finning employees in B.C. who were union members had not disclosed that they had been fully vaccinated.
The union challenged the policy as an unreasonable and an unfair exercise of managerial rights. It argued that employees shouldn’t have to pay the cost of getting an RAT – which imposed a financial burden on those who chose not to get vaccinated, effectively putting a fine on that choice – or take the test on their personal time when its purpose was work-related.
The employer is obligated to bear the cost of ensuring a safe workplace, the union argued, noting that the collective agreement enshrined Finning’s obligation to pay for protective clothing and personal protective equipment where the company required them.
Finning contended that the policy struck a reasonable balance between employer and employee interests by allowing employees to choose between getting vaccinated, taking RATs, or neither – with the third option potentially leading to an unpaid leave of absence. The company also argued that for employees, the cost of testing was lower than the loss of income employees would experience if placed on unpaid leave.
Finning also said that paying for RATs and compensating employees for the time spent getting tested would be a monetary benefit that would enrich unvaccinated employees and would be counter it the policy’s aim of having as many employees as possible vaccinated.
Read more: Ontario arbitration decisions disagree on whether mandatory vaccination policies must be a reasonable exercise of employers’ management rights.
The B.C. arbitrator found that while the policy provided options for employees, the specific way that the testing option had to be carried out and imposing the cost on the employees, “created a requirement that was a barrier to those employees who did not wish to disclose their vaccination status from attending work.”
It was also clear that Finning wanted to make RATs a less desirable option, which made it an unreasonable choice – the “purported purpose” of the RAT option was “to dissuade and discourage employees from using it,” the arbitrator said.
Reasonable exercise of management rights
“The issue of COVID becomes so contentious so quickly, so [the arbitrator] distilled it down to a management rights issue,” says Penner. “Anytime management introduces a policy, there's a reasonableness test that applies in virtually every circumstance. It's called the KVP test.”
The KVP test, established in the 1965 Ontario arbitration decision Re Lumber and Sawmill Workers Union, Local 2537 and KVP Co., 1965 CanLII 1009, has two substantive requirements – a workplace rule or policy must be reasonable, and it must not conflict with the collective agreement.
The arbitrator disagreed that Finning paying for RATs would confer a monetary benefit on unvaccinated employees. Testing didn’t provide any benefit to employees other than allowing them to attend work and a negative result led to a requirement to go to work, making RATs more like a required safety item than a benefit, said the arbitrator.
Penner notes that the collective agreement’s health and safety clause, setting out reimbursement for certain safety equipment with Finning supplying other safety equipment, put the union on solid ground in contesting the requirement to pay for RAT tests.
“There's a precedent within the collective agreement under the health and safety issue, whereby if the employer is mandating certain things to be used or certain things to be done, they are bearing that cost,” he says. “[The arbitrator] was able to characterize rapid tests as falling within the article as far as justification to say, ‘If you're insisting on the employees taking on this responsibility, which comes at a cost, that's the cost you have to bear on behalf of the employees.’”
Read more: Zero tolerance policies must comply with the KVP principles and be just and reasonable in the circumstances, writes an employment lawyer.
However, the arbitrator disagreed with the union on compensation for the time spent taking tests. While it could take almost an hour to receive results, the actual time spent taking the test was much less and employees could take it at home, meaning it was not a significant demand on employee personal time. As a result, the arbitrator found that Finning did not have to pay employees for the time spent taking RATs.
Paying for tests versus paying for time
The union’s argument for employees to be paid to take the tests was weaker than the argument to have Finning cover the cost of the tests, says Penner.
“The amount of actual time the test is going to take the employee, who has the discretion of doing it at home or anywhere they want, is so minimal it doesn't even reach the threshold of considering whether this was time at work,” he says. “If the test was more time consuming, I think there might have been a bit of a different analysis.”
The arbitrator determined that it wasn’t reasonable for Finning to expect employees to cover the cost of RATs, but it was reasonable to expect employees to take the test on their personal time.
Penner says that the safety equipment issue that supported the union’s argument that Finning should pay for the tests has some potential to be looked at in other cases, but the collective agreement elements narrow the scope to the facts of this case.
“I think the arbitrator was acutely aware of the potential of this being a landmark decision, so it was drafted very carefully,” says Penner. “As a union lawyer, I look at this and I would say I'd have to do a lot of work to be able to apply this to other parties with other collective agreements – if the language wasn't almost identical, I would really have to tap dance to make this apply.”
However, Penner thinks the decision still has some key points that employers can take away from it.
“Anytime you are creating a policy that is inherently discriminatory, where it's intentionally treating a group of employees different than another group, you have to proceed with caution or you're just opening up yourself to a challenge later on,” he says. “At the end of the day, the KVP test is still the litmus test – if you want to feel safe in the introduction of a new policy, applying that analysis from the get-go is imperative.”
See Finning (Canada) and IAMAW, Vancouver Lodge 692 (COVID-19 Vaccination Disclosure Policy), Re, 2022 CarswellBC 838.
