New programme provisions
Mandatory workplace RATs
Refusing mandatory RATs
The Ontario government, in partnership with the Ontario Chamber of Commerce, recently launched the Provincial Antigen Screening Program (the programme) allowing all essential businesses to access free covid-19 rapid testing. The programme is expanding as the Canadian government approves more rapid testing devices. Eligible businesses with on-site staff are being encourage by the Ontario government to partake in the initiative.
Recent amendments to the Laboratory and Specimen Collection Centre Licensing Act and regulation enables eligible businesses to administer point-of-care tests (also known as rapid antigen tests or RATs) at locations other than specimen collection centres or licenced laboratories. These amendments also permit non-health care professionals to administer RATs, so long as they have received training in accordance with the programme. Additionally, individuals can self-swab under the supervision of a trained individual.
The Ontario government provides a directory for service providers who can administer the RATs if programme participants do not want to do it themselves. Organisations may also purchase approved testing kits through this directory.
A positive RAT result is not a confirmed covid-19 diagnosis but rather a strong indicator of a covid-19 case. Businesses are no longer required to report positive RAT results to applicable public health units.
The imposition of covid-19 medical testing triggers two workplace concerns in particular: human rights (the Ontario Human Rights Commission suggests that the protected ground of disability is implicated with any testing)(1) and employee privacy (as it is considered to be an invasive measure).
RATs should only be a mandatory part of the workplace if the safety benefits outweigh the invasion to employee privacy.
Safety benefits are likely to outweigh privacy concerns where testing is sufficiently effective in measuring an employee's ability to work safely, or in other words, it must be reasonably accurate in measuring whether an individual will test positive for covid-19. In addition, safety concerns will be more compelling where, for example, there is reason to believe an employee has been exposed to covid-19 (versus simply requiring RATs on a day-to-day basis).
Mandatory RATs are also more likely to be permissible in workplaces where other covid-19 safety measures – like vaccinating employees, social distancing and mask wearing – are more difficult to implement; and where RATs are the least invasive means of detecting potential covid-19 cases.
Employees should still give informed consent before testing, even if there is not a compelling argument for RATs to be mandatory. To promote consent, employees should be informed about why RATs are being implemented, where and how testing will be performed, and how their personal information will be used, protected, and disposed of to ensure confidentiality.
As is the case with other covid-19 safety measures, an employee may be able to refuse reasonably imposed, mandatory RATs in limited circumstances: namely, when the refusal is based on a protected ground in the Ontario Human Rights Code (the Code). Protected grounds include relevant medical concerns (or "disability" under the Code) and legitimate religious beliefs. This would not include, for example, personal preference.
The existence of a protected ground would oblige an employer to consider if they have a duty to accommodate the employee under the Code. This may include considering other testing options for the employee, or, considering alternative ways of working safely if testing requirements for the employee are removed altogether. Alternatively, and as indicated above, it may well be the case that the safety benefits of RATs are so compelling that it may be deemed a "bona fide occupational requirement" and, therefore, permitted even if protected grounds in the Code are engaged.
Several Ontario employers have implemented mandatory testing as part of the programme's pilot scheme. This may prompt further comment from the Ontario Human Rights Commission or related case law.
For further information on this topic please contact Lisa Cabel, Richelle Pollard or Norm Keith at KPMG Law by telephone (+1 416 777 8000) or email ([email protected], [email protected] or [email protected]). The KPMG Law website can be accessed at www.kpmg.com.
(1) Further information is available here.