Ontario arbitrator upholds COVID-19 testing policy on construction site as reasonable

John Hyde

In EllisDon Construction Ltd v Labourers’ International Union of North America, Local 183, Arbitrator Robert W. Kitchen upheld a COVID-19 rapid test policy used on a construction project as reasonable. This decision is valuable for construction employers, as it describes why the construction industry is uniquely susceptible to viral threats like COVID-19, and provides interesting insights moving forward.

EllisDon’s use of COVID-19 rapid testing on construction sites

In February of 2021, EllisDon Construction Ltd. (“EllisDon”) began implementing a COVID-19 rapid test policy on several construction sites. As part of this policy, all individuals seeking access to worksites were required to take the test. Workers who refused to be tested were denied entry.

In deciding which job sites would be subject to the testing requirements, EllisDon took a number of factors into account, including: COVID-19 case counts, whether the project was located in a hot zone, the size of the project, the level of risk for workplace transmission, and client requirements.

Initially, EllisDon only required workers to be tested on sites where the owner had approved of the policy. However, on April 28, 2021, the company announced that its testing policy would be expanded to additional construction sites where no prior approval had been given. This decision was based on:

• the “third wave” of COVID-19 and the subsequent surge in Ontario’s case counts;
• increased news coverage concerning contagious COVID-19 variants; and
• the government’s decision to allow COVID-19 tests to be administered by non-registered healthcare professionals.

The union’s grievance and assertion that the rapid test policy was unreasonable

The Union filed a grievance related to this policy and its subsequent impact on one construction project in particular (“the Project”), asserting that the compulsory COVID-19 rapid testing policy was unreasonable.

The Union’s view was that the risk of infection at this particular worksite was reduced by less intrusive measures, including extensive screening, the mandatory use of masks, physical distancing, and increased efforts to keep the site clean. Importantly, the Union also argued that transmission of the virus would be less of an issue because the jobsite was in an “open air” setting. Finally, the Union stated that the rapid tests were “experimental,” as well as invasive of the worker’s right to privacy and bodily integrity.

In arguing its position, the Union referred to a case pre-dating the COVID-19 pandemic. In that decision, the arbitrator found that an employer could not justify a mandatory vaccine or mask policy solely on good faith and some evidence. Rather, in order for an employer’s policy to be considered reasonable, there must be objective evidence of a real problem that the implemented solution will address. As will become clear, EllisDon met this threshold.

Arbitrator determines that EllisDon’s rapid testing policy was reasonable because of construction-specific concerns and the impact of COVID-19

When determining whether policies such as the one used by EllisDon are reasonable, arbitrators attempt to balance the interests of both the Union and the Employer. While the Union seeks to protect the privacy and dignity of workers, employers strive to protect the safety and well-being of their employees.

Early on in his analysis, Arbitrator Kitchen recognized that there is an increased risk of COVID-19 spreading within the construction industry. Indeed, the construction industry is quite unique in that workers are always moving between different job sites, as well as employers. As a consequence, a virus can spread far easier through the constant movement of construction workers than by employees in other industries. Furthermore, larger construction sites can have a number of unrelated trades performing work at the same time, meaning that the virus can spread amongst several different companies and affect many workers and their families.

Arbitrator Kitchen also found that there was indeed a legitimate risk of COVID-19 spreading on the jobsite in question, and that such concern was not hypothetical or speculative. In spite of the various protocols in place at the Project, nine individuals had already contracted COVID-19, while there were two apparent instances of transmission. As well, Toronto Public Health had declared the Project an “outbreak worksite” before, resulting in both a formal report made under the Occupational Health and Safety Act and a Ministry of Labour inspector visiting the premises. Further, other EllisDon sites had been forced to partially shut down due to COVID-19, and there were a number of cases reported on other company projects.

Finally, in response to the Union’s assertion that the risk of transmission was low on the Project because of the “open air” environment, Arbitrator Kitchen explained that the risk was not eliminated. Indeed, upwards of 100 workers could be working on the jobsite on any given day, and social distancing was not always possible.

After weighing the intrusiveness of EllisDon’s COVID-19 policy with the company’s goal of protecting workers against infection, the rapid testing policy was upheld as reasonable, and the Union’s grievance was dismissed.

The bottom line for construction employers

The COVID-19 pandemic has impacted every industry in significant ways, and construction is certainly no different. In fact, the risks of infection and transmission can oftentimes be higher in the construction industry because of how frequently workers move between different jobsites, as well as the sheer size of some projects. While employers implement policies geared towards protecting the health and safety of their workers, this case illustrates that there may be some pushback.

Arbitrator Kitchen’s decision is valuable for construction employers, as it shows that COVID-19 policies designed to keep workers safe on jobsites will be upheld in circumstances where there is an increased risk of contracting or transmitting the virus. This has interesting implications moving forward, because since the decision was released, the use of workplace vaccination mandates has become another hot-button issue. Though Arbitrator Kitchen’s analysis deals solely with COVID-19 testing, his rationale for upholding EllisDon’s mandate may foreshadow the ways in which Ontario arbitrators will rule on vaccination policies, as well.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.

 He also assists clients in providing strategic legal and human resources advice on labour and employment matters arising out of complex mergers, acquisitions and the sale of businesses.

For more information on how to protect your construction company and ensure that your policies remain on the right side of the law, please contact a lawyer at Hyde HR Law.