Case Comment: Safety on your own time?

Case Comment: Safety on your own time?

Health professional in mask and facemask holds a covid test
Health professional in mask and facemask holds a covid test

In November 2021, in a stated attempt to prevent the spread of the COVID-19 virus, the OPS including the Ministry of the Solicitor General and the Ministry of Children, Community and Social Services introduced the “Ontario Public Service COVID-19 Safe Workplace Directive”. The Directive required mandatory COVID-19 rapid antigen testing for all unvaccinated staff entering a Ministry workplace. At that time, all unvaccinated staff were required to test once per 48-hour period.  In February 2022, this testing was expanded to all staff working in congregate living settings, such as adult correctional institutions and youth facilities, regardless of their vaccination status.

The testing required staff to conduct a rapid antigen test (RAT) prior to entering the workplace, on their own time, and upload the results to an employer supplied phone application using their own electronic equipment.

The Union sought to negotiate compensation for this testing, citing call back and overtime provisions of the Collective Agreement, to no avail.  To back up the labour relations efforts, we filed policy grievances.

As a result of Union action the Grievance Settlement Board ruled that where all staff regardless of vaccination status were required to test outside of work hours, that would be considered work time.

What stands out in this decision?

There are several key points in Arbitrator McLean’s decision.

First, the Arbitrator distinguished the cases the Employer relied on for whether compensation was owing.  In two cases submitted by the Employer (Finning (Canada), a division of Finning International Inc. and IAM Vancouver Lodge (Southern), 2022 CanLII 25773 (BC LA) [2022] and Ontario Power Generation and Power Workers Union (Murray)), the employees had a choice to take the test or provide proof of vaccination, which would negate the testing requirement.  However, this was not an option in congregate cares settings; in the OPS most staff had attested their vaccination status yet were still required to submit a rapid test up to 3 times per week.  There was no other choice.

Second, on the question of call back, the Arbitrator notes that the language in COR9 (Call Back) is clear when entitlement is triggered. There are two provisions, one that is interpreted as when a worker must physically return to the workplace prior to their next scheduled shift, the second in which the worker is contacted, wouldn’t require physically attending but is still considered “call back to work”.  Arbitrator McLean ruled that the Employer’s directive on testing was more like scheduled work and far less disruptive to the member’s personal life. The intrusion of the testing was minimized by the workers’ ability to determine when in a 36-hour window to test and report the results.  As a result, he dismissed the Union’s claim to call back entitlements.

Third, on the question of compensation, the Arbitrator did find that members were entitled to compensation for work time outside of regular work hours.  When the Ministry chose mandatory testing for all staff and implemented the use of their reporting software, which required additional time to sign in and provide the testing details, they also chose to impose an additional burden to employees.  Even in the most efficient manner, Arbitrator McLean suggested that there would be a 10-minute disruption to an employee’s time off work.  It was stated that if this was a one off, it would be considered de minimus, however, that was not the case with the Employer’s directive, as this was a requirement every 48 hours.  Arbitrator McLean compared this to if an employee was required to check work emails for a minimum of 10 minutes, 3 times a week, on a regular basis, suggesting there would be no argument that this would attract compensation.

Finally, the Arbitrator agreed with the Union’s argument in principle, that any costs related to data to upload the test results must be borne by the Employer.  However, he stated that these costs would be owing in very limited circumstances as free Wi-Fi is ubiquitous in the province and reimbursement would be for no more than the smallest data plan without entering into a contract.

After OPSEU SEFPO won the case that the mandatory requirement to submit to rapid testing 3 times/week should be considered compensable work time, the Union and Employer have gone on to negotiate a memorandum of settlement implementing a remedy for the Employer’s breach of the Collective Agreement.

The remedy settlement provides that for the period from February 18, 2022 to March 31, 2023, each member who submitted at least one rapid antigen test per week would be compensated 30 minutes at the overtime rate of pay, irrespective of the number of tests taken and results submitted (unless the member was fixed-term and had not met the threshold for overtime, at which point the compensation would be at straight time).  From April 1, 2023, forward, each test required to be submitted and results reported would be compensated at 10-minutes per test, at the overtime rate (unless the member was fixed-term and had not met the threshold for overtime, at which point the compensation would be at straight time). Mandatory rapid antigen testing ceased on May 1, 2023.

At the end of the day, safety is of key importance, and when the Employer requires workers to perform tasks outside of paid time those can add up and require compensation.

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