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The Question

My boss is requesting that all employees get a COVID-19 test before the office is reopened. The issue I have with this, is that the test only means we do not have the virus at that specific time. We could catch the virus as we leave the testing centre, for example. My thoughts are that it’s useless at indicating safety, and intrusive. Can an employer of a non-essential office workspace make their staff get the test? What are our rights under these conditions?

The First Answer

Rebecca Saturley, managing partner, Stewart McKelvey, Halifax

Maybe. Mandatory medical testing is generally seen as overly invasive and there is often difficulty in demonstrating any link to safety or job performance. Further, a negative test provides only point-in-time information and no information about overall risk level.

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Currently, mandatory testing for employees in non-safety sensitive/essential businesses is unusual. Most businesses are using screening, hand-washing, social distancing and masks to manage the risk of transmission. However, this may not be sufficient in all businesses, particularly as the virus evolves over the next few months. If social distancing is not feasible, the community transmission rate is high and as rapid testing becomes more available, employers may start examining other more invasive methods to control the spread of COVID-19 in the workplace. No employer should implement a mandatory testing program without a full understanding of all the risks associated with such a program, current best practices and whether other alternatives may be sufficient. As well, mandatory testing should be part of a comprehensive COVID-19 workplace plan.

If an employee does not want to take a test, they should talk to their employer to understand why the program is being implemented and communicate their particular concerns. Ultimately, it is unlikely that an employer can force the employee to undergo testing, but, depending on the specific workplace, the employer may be entitled to require the employee to stay home.

The Second Answer

Jason Wong, employmentlLawyer, Wong Employment Law, Toronto

Yes, employers can require employees to take a COVID-19 test. But employers must pay employees for the time they spend in taking the test (such as taking the test during regularly scheduled working hours) as this would be considered an employee’s work time under the employer’s direction. Employers have wide discretion in how they manage the workplace, including setting rules. If the rule does not breach the law or significantly alters the employment relationship, employees must follow them. Requiring a COVID-19 test would count as one such rule. While a test may not be effective in assessing an employee’s ongoing COVID-19 status, the law is not concerned with the wisdom of employer decisions. In addition, requiring a test is not a significant breach of privacy due to the nature of COVID-19. Employers have an obligation to provide a safe work environment and prevent the virus’ spread.

The question then becomes what happens if an employee refuses an employer’s request to take the test? If the employee refuses, most employers will have the right to terminate the employment relationship by providing the employee with notice of termination or payment in lieu of notice (often referred to as the “severance package”). Employees should know that most employers have this right to dismiss employees with notice, for almost any reason, including when an employee refuses a lawful order.

When faced with such a request, employees may want to propose more effective COVID-19 precautions. But if an employer is requiring the test, employees should comply if they want to work.

The above will apply to most employees. Employees in unions or in federally regulated industries may have different rights, including greater protection against termination.

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