Labour Ministry’s interpretation of rules poses risks for ‘low-income, precarious workers who can’t afford to take the time off’
Ontario’s Ministry of Labour is taking the view that employers, including high-risk workplaces like long-term care homes, don’t have to compensate workers for time spent getting tested for COVID-19.
In emails obtained by PressProgress, Unifor asked Ontario’s Ministry of Labour to clarify its interpretation of Section 26(3) of the Occupational Health and Safety Act, which states that employers are required to pay workers for medical examinations or tests when they are in a “prescribed medical surveillance program.”
“If workers are ‘required’ by the employer to be tested for COVID 19 to work, is the employer obligated to pay for those tests?” Unifor asked.
The Ministry replied that COVID-19 testing “does not apply,” effectively meaning employers can make workers get tested for COVID-19 outside of work hours without any compensation for time or travel costs whatsoever.
“Under the OHSA, the term ‘prescribed’ means prescribed by a regulation made under the Act,” the Ministry of Labour explained. “Since testing for COVID-19 is not a prescribed medical surveillance program under the OHSA the section does not apply.”
Ken Bondy, Unifor’s National Representative for Health, Safety and Environment, said the union asked for the clarification following a COVID-19 outbreak at Ottawa’s Carlingview Manor that infected 170 residents and 89 staff.
In total, by the end of June, the outbreak had claimed the lives of 59 residents.
In an April 30 letter from Unifor to Ontario Premier Doug Ford, the union states that Carlingview Manor’s management “has not tested a significant complement of the staff,” estimating “less than half” had been tested for COVID-19.
“The failure of the employer to comply with minimum provincial directives as they relate to testing, cohorting and infection control create unmanageable demand on available PPE supply,” wrote Unifor President Jerry Dias.
“Further, those minimum requirements outlined in the directives are not adequate for the circumstances of this outbreak and greater intervention is required.”
Revera, which operates Carlingview Manor, told PressProgress that the company is following guidelines which “indicate that staff surveillance testing is voluntary but encouraged at each home.”
“For voluntary staff testing, employees have the option of being tested either at the workplace or at approved assessment centres in the community,” Revera spokesperson Larry Roberts said.
When testing is deemed “mandatory,” such as when a worker calls in sick with COVID-19 symptoms, the spokesperson clarified: “Management at Carlingview Manor ensures that the staff have been paid when they have been given time off from scheduled shifts for this mandatory testing at the community assessment centres.”
A WorkSafe Ontario inspection notice for Carlingview Manor dated April 10 noted two workers had tested positive for COVID-19 and three others showed symptoms.
The Ministry did not conduct a physical inspection of Carlingview Manor. Instead, following a teleconference inspection, the ministry concluded no further action was necessary due to the LTC home’s masking, screening and disinfecting policies.
Thomas Tenkate, a Ryerson University occupational health professor, said the Ministry’s strict interpretation of the law seems at odds with the spirit of the law.
“The spirit of the OHSA is that if there is the potential for hazardous exposures at work (e.g. to designated substances) then it is good for worker health to have a medical testing / surveillance program in place to ensure that workers are fit to work,” Tenkate told PressProgress.
“In the case of the current coronavirus pandemic, I think that similar logic can be applied to testing of high risk workers,” he said. “In this case, I think that the spirit of the law would extend to apply to costs associated with coronavirus testing.”
McMaster University labour studies professor Stephanie Premji told PressProgress the Ministry of Labour’s email is “particularly concerning for low-income, precarious workers who can’t afford to take the time off.”
“In my view, it’s inappropriate for workers to shoulder the financial responsibility of keeping co-workers, customers and clients safe,” Premji said.
“Logically speaking, if employers aren’t obligated to pay staff to get tested then many will go to work not knowing if they have COVID, potentially resulting in outbreaks in the workplace.”