Requirement for nursing home staff to take regular COVID tests reasonable

Potential outbreak risky for residents: Arbitrator

Requirement for nursing home staff to take regular COVID tests reasonable

An arbitrator has upheld an Ontario retirement home’s requirement that its employees submit to COVID-19 testing every two weeks.

Caressant Care (CCRH) is a retirement home located in Woodstock, Ont. The retirement home is attached to a nursing home through a double door. In March 2020, CCRH implemented a policy requiring all staff to wear masks, in response to the COVID-19 pandemic. Staff were also required to change their clothes and shoes at the beginning and end of their shifts.

In May, CCRH arranged for all staff, management, and residents of the home to be tested for COVID-19. Although no positive cases were identified among staff, management, or residents at the home, CCRH advised staff that they would be tested every two weeks and proof of the testing would have to be provided to management. This was based on a recommendation by Ontario’s Ministry of Health. On June 29, CCRH sent a memo to staff stating that staff that participated in the testing would be paid for one hour of work with free parking at the hospital.

However, several CCRH employees said they weren’t willing to participate in the biweekly surveillance testing. One particular registered nurse at the home said the initial nasal swab test caused her nose to bleed for multiple days and she felt biweekly testing by the same method was invasive. She also argued that the testing didn’t accomplish its stated purpose, as a test only indicated whether someone had COVID-19 at that particular time, so someone could get it during the two weeks before the next round of testing.

CCRH said anyone who refused would have to wear full personal protective equipment (PPE) for their entire shifts at the retirement home or be held out of service. Employees who specifically challenged the nasal swab testing method were assessed on a case-by-case basis and those who couldn’t tolerate the nasal swab were allowed to do a throat swab. However, the union filed a grievance, claiming that the biweekly surveillance testing was unreasonable for employees who were asymptomatic.

The arbitrator noted that the policy was clear and unequivocal, was brought to the attention of employees, and the consequence for not participating was disciplinary. These were all criteria established in arbitral jurisprudence and supported by the Supreme Court of Canada.

The arbitrator disagreed with the union’s comparison to cases where drug and alcohol testing was deemed to be unreasonable based on the weighing of the policy’s goal against the breach of employee privacy. It noted that CCRH’s goal of controlling COVID-19 infections — which are particularly dangerous to the elderly, the demographic that made up CCRH’s residents — was not the same as monitoring the workplace for intoxicants, which are not infectious.

“COVID testing reveals only one piece of information: the employee’s COVID status,” said the arbitrator. “Being intoxicated is culpable conduct; testing positive [for COVID-19] is not.”

The arbitrator found that, given the seriousness of the effects of an outbreak at the home, it was reasonable to have employees take a nasal swab test once every 14 days to help prevent the spread of COVID-19 in the home. Waiting to act until an infection or outbreak happened was not a reasonable option, said the arbitrator, adding that it had been established by scientists that testing symptomatic individuals only would miss much of the spread in the community.

“A negative test may be of limited value to the individual employee tested but it is of high value to the home; and a positive test is of immense value to both the employee and the home,” said the arbitrator. “A positive test leads to identification, isolation, contact tracing and the whole panoply of tools used in combatting the spread of the virus.”

The grievance was dismissed.

Reference: Caressant Care Nursing and Retirement Homes and Christian Labour Association of Canada. Dana Randall — arbitrator. Thomas Stefanik for employer. Peter Vlaar for employee. Dec. 9, 2020. 2020 CanLII 100531

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