Ontario employer covered testing costs for first few weeks of policy’s implementation
An Ontario municipality’s requirement that unvaccinated employees pay the full cost for COVID-19 testing needed for them to work was unreasonable, an arbitrator has ruled.
In August 2021, the Ontario government made COVID-19 vaccination policies mandatory for high-risk settings by Sept. 7. This was partly in response to the Delta variant spreading quickly in the province over the previous few months as well as COVID-19 vaccines becoming widely available.
The high-risk settings covered by the vaccination policy requirement included hospitals, home and community care service providers, post-secondary institutions, licensed retirement homes, women’s shelters, and congregate group homes.
On Sept. 20, the public health unit covering Southwestern Ontario recommended that employers in the region should implement workplace vaccination policies. Provincial legislation also required open businesses to comply with the “advice, recommendations and instructions of public health officials.”
In late October, members of the human resources department for the City of St. Thomas, Ont., met with its unions to advise them of the city’s intention to implement a vaccination policy for employees. The policy was approved by the municipal council on Nov. 1.
An Ontario employer’s vaccination policy was reasonable, but the employer should have consulted the union, an arbitrator ruled.
Vaccinate or test
The city’s vaccination policy required all active employees to provide proof of full vaccination against COVID-19 or a request for an exemption due to medical or religious reasons under the Ontario Human Rights Code. If any employees did neither, their third option was to complete a COVID-19 educational program and complete rapid antigen testing at least twice per week.
No city employee sought an exemption from the vaccination requirement due to a medical or religious reason.
The city announced that rapid antigen testing would be required starting on Nov. 22 and it would pay for it until Dec. 31. After that date, anyone who remained unvaccinated or refused to declare their vaccination status would have to cover the costs of testing themselves. The cost of such tests ranged between $20 and $40 each.
On Dec. 16, the union for the city’s outside workers grieved the requirement that employees pay for rapid antigen testing after Dec. 31. Just over a month later, the union for the city’s clerical and technical workers filed a similar grievance. Neither grievance challenged the overall reasonableness of the policy, but they both argued that the requirement for employees to pay for twice-a-week testing breached the collective agreements and the Ontario Occupational Health and Safety Act.
A mandatory vaccination policy was not constructive dismissal, the BC Supreme Court ruled.
Unilateral implementation
The unions asserted that, because the policy was unilaterally implemented, they weren’t given the opportunity to provide input and work with the city as partners for providing a safe working environment. They noted that the joint health and safety committee was not involved in the policy’s development.
The unions argued that there were other viable options for testing rather than requiring employees to pay for rapid antigen tests. Home-based testing – where people can administer the tests themselves at a lower cost - had been accepted by other employers in Ontario and should have been considered, they said. In addition, they suggested that it was common for employers to assume certain costs related to ensuring that employees have access to and are provided with personal protective equipment (PPE), to which the tests were analogous.
The city noted that its vaccination policy did not include any provision suggesting that employees could be terminated or placed on an unpaid leave of absence for not being vaccinated. Instead, it provided various options for employees to work. It also said that paying for rapid antigen tests until Dec. 31 was a reasonable and balanced approach.
In addition, if the union was seeking a monetary benefit, it should negotiate such wording into the collective agreement, the city said.
A construction site’s introduction of COVID-19 testing was a reasonable exercise of management rights to reduce the spread of the disease, an Ontario arbitrator ruled.
No monetary benefit
The arbitrator dismissed the idea that having the city pay for tests would be considered a monetary benefit. Otherwise, unions would not be able to challenge any employer policy that imposed costs on employees without collective agreement wording that addressed it. Instead, the issue was whether the city reasonable used its management right to unilaterally introduce the policy, said the arbitrator.
The arbitrator noted that the policy attempted to balance the interests of the employer and employee and wasn’t actually a mandatory vaccination policy – there were options for employees who didn’t want to be vaccination but continue to work, including twice-a-week rapid antigen testing. In addition, the city covered the cost of such testing for the first five weeks of the policy being in effect, the arbitrator said.
The arbitrator found that it might be appropriate for unvaccinated employees to bear some responsibility for testing costs, but those costs must be reasonable in the circumstances. In this case, obligating employees with the full cost of such testing was a significant amount to cover – up to $2,000 over the course of a year for affected employees, said the arbitrator, noting that the city didn’t say why it didn’t consider allowing at-home rapid antigen testing, which could reduce the costs for affected employees.
The arbitrator determined that the aspect of the policy that required unvaccinated employees to pay the full cost of twice-a-week rapid antigen testing in order to work was not reasonable. The city was ordered to pay affected employees half of the costs they incurred from such testing from Jan. 1 to April 1 – the day that the policy was rescinded after provincial orders were lifted.
