Tests needed to comply with policy, but worker chose to do them outside of work hours
A British Columbia worker is not entitled to pay for the time she spent attending the workplace to get rapid testing in compliance with her employer’s COVID-19 vaccination policy when she did so outside of her scheduled shifts, the BC Employment Standards Tribunal has ruled.
Gateway Casinos and Entertainment is a gaming and entertainment operator based in Burnaby, BC, which operates casinos in BC, Alberta, and Ontario, including a casino and restaurant in Langley, BC.
On Sept. 24, 2021, Gateway implemented a policy requiring all employees to be either fully vaccinated against COVID-19 or to wear a face mask on company property and obtain a weekly COVID-19 rapid test. Any employees who failed to comply with the policy would be placed on unpaid leave, unless they were granted an exemption by Gateway.
For unvaccinated employees, Gateway provided an option of attending rapid testing on its premises on specified days at the company’s expense or obtaining third-party tests off-site at the employee’s expense.
Employees who opted for testing had to show proof of a negative test no more than seven days before their shift and the policy stipulated that they would not be compensated for time taking a rapid test or waiting for results.
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Weekly testing at workplace
The worker did not get vaccinated and chose to wear a mask with weekly testing. She went to Gateway’s premises for testing each Monday for 21 weeks, although she didn’t usually work Mondays. This continued until Gateway rescinded the policy on April 8, 2022.
In March 2022, the worker filed an employment standards complaint, alleging that Gateway contravened the BC Employment Standards Act (ESA) by failing to pay her wages for attending on-site rapid testing under the vaccination policy.
A delegate of the province’s employment standards director investigated and found that the implementation of the vaccination policy was a requirement imposed by the provincial government as a condition of operating the casino and restaurant. Gateway could not operate its business without employees either getting vaccinated or tested, and Gateway directed the worker to get tested, said the delegate. As a result, the worker was performing a service for Gateway when she attended the workplace for testing, which constituted work deserving of compensation under the ESA, the delegate concluded.
The delegate also found that, since the worker made the choice to go for rapid testing on Mondays, she was not entitled to minimum daily pay as Gateway did not direct her to report to work. The delegate determined that the worker was entitled to 30 minutes’ pay for each of the 21 Mondays she attended for testing, for a total of 10.5 hours equalling $169.43 in pay. Gateway was also ordered to pay a $500 administrative penalty for contravening the ESA.
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Company appealed
Gateway appealed the decision, arguing that the worker’s decision to go with rapid testing was neither directed by it nor relating to the performance of her employment duties. The worker chose not to provide her vaccination status and to participate in the complimentary weekly testing on its premises, said the company.
The tribunal found that the worker’s continued work was conditional on meeting the terms of the policy, which provided different options for compliance. The worker was directed to comply with the policy, but not on how to comply, or where to take the rapid tests, said the tribunal.
The tribunal pointed out that, while the ESA should be interpreted broadly, it was established that work for an employer does not exist “unless it is performed because of instructions by the employer, or somehow demanded or allowed by an employer.” A labour or service performed “purely for the reason of a personal interest of the employee” was not compensable work, said the tribunal.
The tribunal disagreed with the employment standards delegate that the time spent by the employee getting rapid tested fell within the definition of “work” under the ESA. As a result, the delegate’s decision was cancelled. See Gateway Casinos & Entertainment Limited (Re), 2023 BCEST 16.
