Mandatory OPS Rapid Antigen Tests ruled “work” by Grievance Settlement Board (GSB)

Mandatory OPS Rapid Antigen Tests ruled “work” by Grievance Settlement Board (GSB)


View the decision

View the memorandum of settlement here

On October 26, 2022, the Grievance Settlement Board (GSB) issued a decision related to the mandatory completion and submission of COVID-19 “Rapid Antigen Tests” by employees on their own time, before attending the workplace (please see attached the decision in GSB #2021- 3633 and 2021-4288). This mandatory requirement was/is for all members in the OPS in the Correctional and Unified Bargaining Units who work in congregate care settings, regardless of their vaccination status.

The decision determined that the mandatory COVID-19 rapid antigen testing of employees is “work” and those performing this work on their own time must be compensated; the decision did not specify the manner of payment, nor whether the payment should be at straight time or overtime. A Memorandum of Settlement (MOS) was negotiated on January 27, 2023 and provides a payment protocol that outlines how employees are to be compensated by the Employer in accordance with the GSB’s decision. It also resolves all outstanding Unified and Corrections grievances with respect to compensation for rapid antigen testing.

In the decision, Arbitrator McLean answers three claims made by the Union: 1) Is the rapid antigen test process “work” for which employees should be paid? 2) Does the testing time attract call-back pay? and 3) Should employees be reimbursed for additional internet data costs incurred in submitting the test results?

Arbitrator McLean concludes that this testing is work in the limited circumstances of mandatory testing regardless of vaccination status and must be compensated (at 10 minutes per test, submitted three times per week), but that it does not attract call-back pay.

The claim by the Union that data costs incurred by individuals must be reimbursed by the Employer is answered at paragraph 45 of the decision. Arbitrator McLean decides that the Employer must reimburse employees only in very limited circumstances, where there was no reasonable way to submit the testing using free/unlimited wi-fi.

The MOS was achieved with the assistance of Janet Laverty, Ministry of the Solicitor-General (Corrections) MERC Vice-Chair and Mike Greene, Local 112 President, Child and Parent Resource Institute (CPRI). This MOS applies to members of Correctional Institutions, Youth Facilities, and the Child and Parent Resource Institute (CPRI). There is an outstanding dispute regarding whether this MOS applies to Provincial and Demonstration Schools. The Settlement specifically deals with the question of compensation for the submission of the testing on members own time, as identified in the McLean decision; OPSEU/SEFPO was able to negotiate compensation at the overtime rate of pay.

For the time period of January 24, 2022 to March 31, 2023, all Employees (Regular/Classified and Fixed Term Employees) who submitted testing on their own time and attended the workplace will be compensated for 30 minutes of work at the overtime rate of pay for each week that they submitted at least one test. Employees who are on a fixed weekly salary are to receive compensating time off as per Collective Agreement Articles UN8.7.1, UN8.7.4, COR8.4 or COR8.7.1. This is in effect until March 31st, 2023.

The Employer will review attendance and test records and process the payment for this compensation period by no later than August 31, 2023.

From April 1 to December 31, 2023, Regular (Classified) Employees will continue to be compensated as per the above, with the exception that this compensation will be for ten

(10) minutes at the overtime rate for each test actually taken and submitted. Fixed Term

Employees will continue to receive compensation, but will receive overtime after the applicable straight time hours are worked as per Collective Agreement Article 31.A.3.

This MOS is in place until the end of 2023. The CERC and B-MERC are to discuss a future payment protocol if mandatory testing is to continue past December 31, 2023; at this time, it is unknown when mandatory testing will cease.

As the Union has arrived at a settlement with the Employer, individual Grievors are required to contact the Arbitrations Unit if they have any outstanding claims of internet data expenses incurred when submitting rapid antigen test results to the Employer. Should you not respond by Friday April 28, 2023, your grievance will be deemed resolved in accordance with the MOS (and without an additional payment in respect of internet data expenses).

If you wish to make a claim for reimbursement for extra data expenses incurred when submitting rapid antigen tests, please contact the Arbitrations Unit by email at no later than Friday April 28, 2023 at 5 pm. You do not need to contact the Arbitrations Unit unless you wish to make a claim for reimbursement for extra data expenses.

The GSB’s decision and MOS are attached, for your reference.