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Construction workers should expect to be tested for COVID on the spot more often following an Ontario Labour Relations Board decision (OLRB), says Toronto lawyer Norm Keith.

Keith, a partner with KPMG Law who takes on Occupational Health and Safety Act cases, says a recent decision by the OLRB arbitrator holding up EllisDon Construction’s right to test workers twice a week at 47 sites as part of a pilot program merely echoes a trend.

“This is another decision and every decision from Human Rights Commissions to the Labour board has always favoured employers in any dispute involves safety pitted against privacy rights or anything else,” says Keith.

“Safety is a priority.”

The grievance was brought by the LIUNA (Labourer’s International Union of North America) Local 183 after EllisDon brought in a twice weekly testing program of workers at 47 job sites.

The testing began in February 2021 and was part of a pilot program initiated by the Ontario Ministry of Health in collaboration with Public Health Ontario to assess the efficacy of the Abbott Panblo rapid antigen test which gives results in 15 minutes on the spot.

As part of the protocol all workers were required to submit to the test before they could enter the job site. In all there were more than 500 workers at the 47 sites. The test is minimally invasive, taking a swab sample from the lower nostril and throat unlike the PCR test which requires swab insertion deep into the upper nose passage. The PCR test also takes up to two days or more to get a result.

On showing a positive result the employee would be told to get a PCR test and to isolate and all workers who came into contact with that person would also be told to get tested and isolate.

By May 2021 EllisDon had seen more than 100,000 tests with 179 positive results of which 118 were confirmed by PCR test and 41 still pending at that time.
Multiple positive also forced the shut down of several sites by Toronto Public Health .

On May 11 LIUNA 183 filed a grievance claiming the mandatory testing was a violation of the collective agreement and unreasonable. Also, it claimed, even rapid testing is invasive and violates employee privacy while being “experimental” and triggering false positive results.

EllisDon countered that despite strict protocols — and disciplining of workers who violated them — it wasn’t enough to prevent COVID infections at site.

Arbitrator Robert W. Kitchen agreed: “COVID spread remains a threat to the public at large and those working at EllisDon construction sites. When one weighs the intrusiveness of the rapid test against the objective of the Policy, preventing the spread of COVID-19, the policy is a reasonable one.”

Workplace Safety and Insurance Board Ontario statistics show 245 people died in 2021 as a result of workplace injury or illness and of those 28 were COVID related, says KPMG Law’s Keith.

He says unions are making a losing argument telling their members not to reveal if they are vaccinated or to refuse tests.

“This is a once in 100-year event, these are extraordinary circumstances,” he says. “There’s no access to medical information or privacy issues here.”

Further, he says, Section 28 of the Occupational Health and Safety Act requires no one shall work in a manner to put themselves or others in danger.

“Dragging yourself in when you’re sick and coughing because you have COVID might put someone at risk,” he says. “Workers have a duty to themselves and others, a broad duty because construction sites are dangerous places.”