Canadian HR Reporter

May 2021 CAN

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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2 N E W S "We really tried to be proactive and… to be on the leading edge of keeping employees safe and the worksites open," he says. With newer screening technologies such as rapid testing and distancing devices — and the rollout of promising vaccines — employers such as EllisDon have a lot to consider when it comes to keeping employees safe, whether they are at the workplace now or going back to the office once the worst of the pandemic subsides. EllisDon mandates testing Back in December, as part of an Ontario government pilot project, EllisDon started a voluntary screening program with rapid tests at a few of its worksites. This involved a full nasal pharyngeal done by a registered nurse. Basically, it's an enhanced workplace screening program, says Chaplin. "We're only doing the testing on asymptomatic people. So, workers still come in every day and they have to get their temperature screened, have to answer their health screening questions. If they pass that, they're allowed onto the worksite. And twice a week… they'll go and do their antigen screen." While effective, the participation rate was pretty low to start so the company decided to make the test mandatory. This was done after consulting with the legal department and the unions, he says. "We said, 'We're going to do it and it's a pandemic, it's the right thing to do, and we're going to see what happens.' And, so, we took a bit of a leap." Any workers who don't want to partici- pate will not have access to that worksite, but they can work at another location or at home, if possible, says Chaplin. But resistance should be reduced as the test is easier now. "We had one individual that was a false positive and we ended up paying him for the day because it was the right thing to do. But every case and every situation is different," he says. Office employees are also doing the rapid testing, although, with the lock- downs, less than 10 per cent are in the office each day, says Paul Trudel, senior vice president of people and culture at EllisDon. "If you're in five days a week, you're probably still only getting [the test] once or twice a week versus having it done every single day." The main message to employees is that this about helping them feel safe, he says. "The benefits are far outweighing any sort of negatives that we're experi- encing. So, we would certainly look at continuing it." Legal considerations There are, not surprisingly, a few legal considerations when it comes to rolling out screening methods such as rapid antigen testing. And a big one would be the requirement for mandatory testing. If the employer is in a jurisdiction that has privacy legislation or has a unionized environment, making it mandatory is about establishing that there's need for it, says Daniel Michaluk, a partner at BLG in Toronto. "That's basically it — you're going to argue that 'We have a need to collect this information and administer this test, based on our interest in keeping a safe workplace, that overrides the intrusiveness associated with the testing process itself and the associated information collection.'" This was seen, for example, with a recent case in Ontario involving a worker at a retirement home, where the arbitrator issued an award upholding an "Doing a full nasal pharyngeal on employees twice a week… nobody would want to do that. And so… we've been doing the back of throat and two lower nasal [swabs], which is fairly accurate if not as accurate as the full nasal pharyngeal. But it's good in early detection," he says. And the tests can now be done by a trained person instead of a health-care professional, who can test about 100 people in a day. Workers sign in with a QR code to register and are given a time slot during the workday to take the test, says Chaplin. "The swab is really quick, it's literally a minute for them to do the slot, and then they leave and they go back to the job site." A mechanism will call the worker back within 15 minutes if the test comes back positive, and they then go for a standard PCR to confirm the presumptive positive. "We've been able to identify, I would say, over 20 cases through this process, since January, of presumptive positives... That really has helped to prevent further spread," says Chaplin. In some cases, people are compensated for having to stay home, but it's really approached on a case-by-case basis. employer's right to make employees take a COVID-19 test, he says. Plus, with the more comfortable rapid antigen testing that is available, employers can argue that they're using a less-intrusive method, says Michaluk. "The good thing about testing is… it's not the same as administering a vaccine… that [involves] putting a foreign substance into your body that's meant to have an effect on your health, which is far more intrusive. So, testing has been defended and, I believe, could be defended again." As for any workers who refuse to take the test, discipline may not be an option for employers. "I'm not sure you can ever rightly discipline someone for disobeying a requirement to have a bodily intrusion or something like that," he says. "It's not insubordination in the classic sense... Insubordination is about thumbing your nose at the employer's authority." Often, the employee will say they are making a bonafide choice about their privacy, which in most cases rules out a disciplinary approach, says Michaluk. "But you can require it as a condition of doing [the job]." Another important consideration is securing the screening data, which is a requirement. But data retention shouldn't be an insurmountable barrier to bringing in testing, and the information can probably be stored in identifiable form, he says. "In most cases, I don't see any compelling reason to scrub it because you're only going to retain it for a short period of time… I understand most employers are landing on about 30 days — I haven't heard a compelling reason to keep the data for longer." ELLISDON SEES ROI OF RAPID TESTING Source: EllisDon "The benefits are far outweighing any sort of negatives that we're experiencing." Paul Trudel, EllisDon 5,000 Number of salaried and hourly employees in Canada 100 Number of rapid antigen tests done each day at a worksite 10,000 Number of rapid antigen tests done on a weekly basis 20 Number of presumptive positive tests in first quarter of 2021 Rapid testing> pg. 1

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