Re: COVID-19 Testing of Construction Workers
As many of you will know, certain employers, including many of the bigger employers bound to our collective agreements, have begun to institute mandatory COVID-19 testing for all workers (whether directly employed or employed by subcontractors) on their job sites. Having consulted on this issue, I am writing to set out the CDCO’s position concerning such general job site-wide testing so that all of our members, across the province, will receive a consistent position from their Union.
The starting point for our Union’s position, is that - any employer is entitled to take “reasonable” measures concerning health and safety on its job sites, providing that those measures do not directly conflict with a statute or a relevant collective agreement.
In the circumstances Ontario is currently in, it appears that there is nothing in our collective agreements and/or any provincial statutes which would expressly prohibit an employer (or a general contractor/construction customer) from requiring workers on its job sites to be tested for COVID-19. There are no human rights considerations that the Union is currently aware of relating to the testing process, however, if one is raised, that would have to be dealt with on an individual basis.
Specifically, as we all know, Ontario is in the middle of a government declared health emergency which has closed down much of our province. Therefore, steps which an employer might take, and which would likely be found to be “unreasonable” in normal circumstances, are much more likely to be found to be reasonable if they can be directly linked to health and safety concerns related to the pandemic.
In this respect, testing for COVID-19 is not the same as drug and alcohol testing which some employers have tried to introduce over the years and the legal rights involved are quite different. Nevertheless, there are clear limits and requirements which we, as a Union, should insist upon to protect the interests and rights of our members.
Therefore, given the above, the position of the CDCO to general, job site-wide, COVID-19 testing, while Ontario continues to experience a government declared emergency, should be as follows:
1. The CDCO will not object to the general testing of its members for COVID-19
provided that the criteria set out below are followed;
2. The testing requirements cannot be arbitrary or discriminatory and accordingly
have to apply equally to all onsite workers;
3. The testing can only relate to COVID-19 and cannot include testing for any other
purpose or reason;
4. The testing must be carried out by an independent qualified health care provider,
using qualified personnel and generally accepted testing methods;
5. The results of the testing must be kept confidential and private, subject to legal and
health requirements concerning contact tracing;
6. The testing must be carried out in a private, and suitable, place on/adjacent to the
jobsite;
7. The testing must take place during working hours and employees must be paid at
their relevant rates for all time involved (including at over-time rates, should
those be appropriate);
8. Prior to testing taking place, employees must be asked whether they consent to
such testing and/or whether any special circumstances exist which might prevent
them from being tested (including for example, any relevant pre-existing medical
conditions/disabilities or religious objections etc.);
9. Any employee who does not consent to being tested without a specific
objection/reason, should be offered a lay-off so that they can collect E.I. and/or special
COVID-19 Emergency Benefits and can sign on at their Hiring Hall to be eligible for
work for a different employer (presumably an employer that does not require testing);
10. Any employee who does not consent to testing and provides a
particular reason/objection, should be allowed to continue working until the
specific reason/objection provided can be assessed, which may include the necessity
for reasonable accommodation in accordance with the Human Rights Code.
I realize that many of our members have concerns about being required to take a
COVID-19 test. However, these are extraordinary times and therefore, extraordinary
measures have to be considered to keep all of us safe.
I hope this letter is clear but if you have any concerns or questions, please let me know
and/or speak to the legal department.
Sincerely,
Tony Iannuzzi
Executive Secretary Treasurer