Can a unionized employer terminate an employee’s employment for refusing to be tested for COVID-19?

In the recent decision between Ontario Power Generation and The Power Workers Union, the Arbitrator determined three issues, two that are important for unionized employers are as follows:

  1. Who bears the cost of testing for unvaccinated employees when it is a requirement of the employer in order to attend the workplace; and
  2. Is the termination of employees appropriate for employees who do not agree to COVID-19 testing requirements?

In terms of the first issue, Ontario Power Generation (“OPG”) required employees who were unvaccinated to undergo two tests per week. The employees were required to self-administer the tests, video-record themselves administering the test, and take a picture of the test result. They would then be required to upload all documents on a third-party portal on their own time.

The cost of the testing was $25.00 per week. OPG indicated that the employees would be required to agree to have the amount deducted or else, procure their own testing through a third party.

The Power Workers Union (“PWU”) argued that the policy was unreasonable as it placed a financial burden on the impacted employees, and if the Province no longer provided free testing (the alternate option of OPG) the costs could be hundreds of dollars per month. PWU also argued that the employees should be paid for the time it takes them to upload documents and perform the required testing.

The Arbitrator considered section 25(2)(h) of the Occupational Health and Safety Act, that requires the employer take every precaution reasonable in the circumstances for the protection of the worker. The Arbitrator determined that testing employees, is prima facie reasonable given the health and safety obligations of the employer. The Arbitrator determined that in terms of the testing cost, that the cost should be born by OPG. However, the argument that employees should be paid for the time spent for self-administering the test was unsuccessful, as the Arbitrator determined that paying employees for that spent time could act as a disincentive to get vaccinated.

In terms of the second issue, OPG issued the policy that unvaccinated individuals who did not disclose their vaccination status were required to participate in Rapid Antigen Testing once per week for an initial orientation period, followed by twice per week thereafter with 48 hours between tests. In the event that an employee refused testing, they would be placed on unpaid leave of absence. If they refused to adopt the testing program after a period of six (6) weeks on unpaid leave the employee’s employment was terminated for cause.

PWU argued, that the type of discipline was contrary to the collective agreement, as the collective agreement placed limits on OPG’s ability to discipline employees.

The Arbitrator disagreed with the PWU’s argument, and determined the requirement was not a violation of the collective agreement. He determined that, employees placed on an unpaid leave were refusing to take necessary and reasonable steps  that would demonstrate  they were fit to work and would not present an unnecessary risk to their co-workers. He noted that it was different from other circumstances in a disciplinary process where there is an investigation, the ability to come to work in this case was completely in the control of the employee.  Approving of the OPG’s policy to terminate the employment of an employee who chose not to comply with testing requirements, the Arbitrator provided the following warning:

It is important for those individuals who are fired for choosing to not be tested to understand that they are very likely to find the termination of their employment upheld at arbitration. Effectively, employees who refuse testing will likely have made a decision to end their career with this company

The decision is a mixed bag for employers, while employer’s can expect that this decision will be used against them if they are requiring employee’s pay for antigen testing, the decision is beneficial where an employee fails to comply with the reasonable safety requirements of the employer and later has their employment terminated.

If you have any questions related to COVID-19 vaccination policies, or other safety policies concerning COVID-19, please contact us.

Authored by: Travis Ujjainwalla

The material presented in this blog is to present general information on the subject matter and should not be regarded or relied upon as legal advice or opinion.