The Globe and Mail asked me to answer this question for its readers in a recent column of the Nine to Five. The full question was as follows:
My boss is requesting that all employees get a COVID 19 test before reopening the office. 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 answer:
Yes, employers can require employees to take a COVID-19 test. But employers must pay employees for the time they spend 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.
Employers should always be cautious in implementing precautions against COVID-19 and not go overboard. With COVID-19 cases reaching new highs in October 2020 and limited testing, companies should not be telling employees to get tested just because.
If you require legal advice on employee or employer obligations regarding COVID-19 in the workplace please contact Jason Wong. Jason is a Toronto Employment Lawyer practicing exclusively employment, labour, and human rights law. You can contact Jason at jason@wongemploymentlaw.com or 647-242-5961.