On May 7, 2021, the Government of Canada made an announcement to encourage businesses and organizations across Canada to apply for free rapid antigen tests for workplace screening projects. Rapid antigen tests have been recognized as a valid screening tool to help identify individuals who are not showing symptoms of COVID-19 and who may be unknowingly spreading the virus into workplaces and the community.
Following the announcement in May, the Government of Canada released a statement on August 13, 2021 which indicated that more than 2000 local pharmacies were registered to distribute rapid antigen tests to small and medium-sized businesses and organizations.
Currently, small and medium-sized businesses and organizations are eligible to apply for the free rapid antigen test kits, as well as large businesses with 200 or more employees. It is important to note, however, that an employer’s eligibility for receiving the testing kits is decided on a case-by-case basis. Under the Provincial Antigen Screening Program, small and medium-sized businesses and organizations (1-199 employees) that require staff to be on-site will likely be eligible to receive the rapid antigen test kits. Large businesses can apply through the federal delivery program, and must follow the provincial screening program regulations in the province that the business is located in.
The Use of Rapid Antigen Test Kits in the Workplace
The Ministry of Education Announces Rapid Antigen Testing Requirements
The Ministry of Education recently announced that schools and child care centres must require their unvaccinated or partially vaccinated employees to undergo a rapid antigen test. For post-secondary institutions, staff must undergo a rapid test at least once a week, while staff at secondary schools and child care centres are required to undergo a test at least twice per week. Individuals must also submit proof of a negative test result after each test. The Chief Medical Officer of Health has since issued further sector-specific instructions to schools, post-secondary institutions, and child care centres.
Arbitrator’s Decision
Recently, we discussed the June 2021 decision of EllisDon Construction Ltd. v Labourers’ International Union of North America. In this decision, an Arbitrator upheld EllisDon’s Rapid COVID-19 Antigen Screening Program, whereby all employees who entered a work site were required to take the rapid antigen test. In this case, the employer argued that their main interest in implementing the rapid antigen test was not only for the safety of their employees, but to the public at large. This reasoning was upheld in the Arbitrator’s decision, which stated that the testing policy’s objective of preventing the spread of COVID-19 outweighed the minimal intrusiveness of the rapid antigen test. In arriving to this decision, the Arbitrator considered factors such as the nature of the industry, the type of work that the employees were conducting, and the proximity of the workers when they were on-site.
Takeaways for Employers
Currently, rapid antigen testing requirements are only in place for secondary schools, post-secondary institutions, and child care centres. However, with the rising number of Delta variant cases in Ontario, employers who are not in these specific sectors may wish to consider implementing a rapid antigen testing policy as a secondary screening tool for unvaccinated and partially vaccinated employees.
When looking at the reasonableness of implementing such a policy in the workplace, employers should consider the nature of their industry, including whether the type of work conducted by employees involves frequent interaction with members of the public. Employers should also consider whether they are serving a high-risk population, whether employees necessarily have to work in close proximity to others, and/or whether the policy meets the employer’s accommodation obligations for employees who are unable to take the rapid COVID-19 test for reasons related to protected grounds, such as a medical condition or religious reason.
Employers should carefully consider the benefits of rapid antigen testing and weigh them against any possible employee-related challenges that may arise from implementing such a policy in the workplace. Any existing preventative measures in the workplace should be reinforced, and employers should still explore and consider other less-intrusive preventative measures before making the determination that COVID-19 testing is a necessary measure in their workplace.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.