Decision
- These are grievances in which the union claims pay for employees’ time spent complying with the employer’s requirement of certain employees to take a rapid antigen covid test (“test”) and record the results of the test in an employer supplied phone application, prior to attending at work. The parties made argument based on largely agreed facts. This award determines the merits of the grievances.
The Facts
- The COVID-19 pandemic, which commenced in earnest in or about March 2020, had a profound impact on the provision of government services and the way in which government employees performed their jobs. Of import to this case, government services which were provided in congregate settings, such as correctional institutions of all kinds and hospitals, were hard hit by the pandemic with numerous employees and residents/inmates/patients becoming ill.
- Initially, the hope was that the effects of COVID-19 could be significantly mitigated by vaccines and that was true for some time. However, in the Fall of 2021 the Omicron variant of COVID-19 took hold; it appears that vaccines were much less effective at preventing the transmission of this variant than with predecessor variants. The government was concerned that this would have a renewed impact on congregate settings. Since inmates and patients in congregate institutions have a limited ability to protect themselves against becoming infected by the virus, the government determined that further action was required in congregate settings under its control, in addition to the various measures that were in place in Ontario generally in January 2022.
- One of the measures the government took was to require that employees take covid-19 tests on a regular basis. In January 2022 a new policy requiring the taking of regular tests was decided on. In February 2022 affected institutions advised employees of how the regular testing scheme would be implemented.
- Under the plan, the employer supplied test kits to employees who would then be required to self-administer tests, often away from the workplace (generally at home, but it could be anywhere). Instructions were provided on how to administer the test. The test had to be taken 48 hours before the end of the employee’s next scheduled shift. In other words, if an employee worked a 12-hour shift, the employee had to administer the test 36 hours before the start of their shift. However, within that 36-hour period the employee was free to choose when to take the test and report the results.
- It is notable that all, or virtually all, of the employees who were subject to the regular testing regime were twice vaccinated.
- Prior to attending at work, employees were required to report a negative test result. They did this through an employer supplied mobile phone application(which I assume is also available in a PC form) called the Ontario Rapid Screening Solution (the ORSS). Once the ORSS application is installed on the employee’s phone (or PC) the employee must then register in the application through a process of connecting with the OPS system and inputting passwords etc.
- The rapid tests involve a process which is familiar to many of us. Essentially, the employee swabs their nose/mouth, swishes the swab around a tube of solution, waits a few minutes, then drips the solution into a plastic test receptacle and then waits for either one or two lines to show on the receptacle, which can take as long as 15 minutes. In fact, the instructions were for employees to allow the tests receptacle a 15-minute period to assess the sample to get the most accurate result. In the materials provided to employees was a link to a video which explained how to administer a test. The video showed the entire testing process and was four minutes long but did not include the 15- minute waiting period or the steps necessary to report results.
- After completing the test, the employee was then required to open the ORSS application and completes the process of registering the test result. This need not be done at the time the test was taken but must be completed before the employee attends the workplace.
- The employee must follow several steps on the phone application to submit their test to the employer. In the case of a corrections employee, for example, after the employee opens the application, they must then:
Select “Correctional Services” from a drop-down menu
Click the “Home Screening” button
Click the worksite field and type the institutions address until it appears as an auto complete
Select “OPS Supplied Test” from a drop box
Complete a screening survey. I understand that the employee must answer a few of the typical questions related to symptoms.
Take a photo of the plastic test receptacle which shows one line or two (negative or positive). Prior to doing this the employee must write the date on the test receptacle.
Enter the test result from a drop box.
Upload the photo
Confirm the submission by reviewing the information and then clicking “next”
After confirmation, the system sends an email to the employee’s email account. The employee then forwards this email to the institution at which they will be working.
- The union raised a number of issues with this process. This award does not deal with issues, raised in the grievances, arising out of the allegation that the employer may remove an employee from the workplace due to “glitches” in the rapid test reporting. However, I remain seized with respect to those issues, and any other issue raised in the grievances which are not specifically addressed in this decision, if the parties are unable to resolve them.
- The union also noted that some employees do not have access to high speed wifi and, as a result, they have to pay for data usage on “pay as you go plans”. The union seeks reimbursement of those employee incurred costs in these grievances.
- The union asserts that the process of testing and then submitting the test results takes about one-half hour. The employer disagrees with the Union’s estimate and notes that some of the time (especially waiting for the line(s) on the receptacle to appear, which takes 15 minutes) is down time during which the employee is free to do as they please. Neither party called evidence about how long the process actually takes.
- In the absence of evidence, I assess the length of time it would take to take the test based on the video, my own experience and the agreed description, set out above, about the steps required to report results to the employer. I am satisfied that the time it takes to actually administer the test from the point of opening the test kit package to dropping the drops of liquid into the well on the test receptacle is approximately three to four minutes, especially for an experienced test administrator. The initial steps include taking the tube out of its packaging, putting the contents of test liquid into the tube, removing the swab from its packaging, swabbing the nostrils and throat, placing the swab into the testing liquid and swishing it around in the required manner. All of those steps should take two minutes. At that point the swab should be left in the testing liquid, after which a nozzle is placed in the tube and a few drops are placed into the well of the testing receptacle. That should take a further two minutes at most.
- The instructions to employees are then to wait 15 minutes for the results to show on the test receptacle (one or two lines). The employee then has a choice. Their first option is to, while waiting for the 15 minutes for the lines to appear, start the process of submitting the test result by opening the application and completing the initial steps, up to taking a picture of the test receptacle. After waiting the required 15 minutes the employee can then download the picture of the test receptacle, submit it and then forward the system’s confirmation email, to their institution. Choosing that option would mean that the entire process would take 20-25 minutes.
- The employee’s second option would be, after placing the drops in the test receptacle, to go about their daily activities and return to the test after 15 minutes. At that point the employee could then engage the reporting process. In my view, this option would take about ten minutes of testing/reporting time. I recognize that there is some disruption to home life in that period but in the 15 minutes it would be possible for the employee to do something like get ready for bed, make breakfast etc.
Is the Rapid Test Process “Work” for Which the Employee Should be Paid?
- The union argues that both the testing process and the reporting of the results are work which attracts the right to compensation. The rapid test and the reporting of the test results are activities the employer requires the employees do on their own time. The employee often cannot do it on work time because they are not permitted to attend work until they have submitted a negative test through the application. Corrections employees are not supposed to have cell phones in the secure area of an institution. Moreover, the rapid tests are an intrusive, sometimes painful procedure; the employer is forcing employees to undergo an uncomfortable procedure on their own time. This interferes with an employee’s right to enjoy their time off from work.
- The employer argues that the rapid testing and the reporting are not work but are processes which an employee must go through to be ready to attend work in much the same way as getting dressed in a work uniform is. The employer notes that, for example, correctional officers must shave for work in such a way, so as to permit a tight seal on a firefighting mask. Nobody would ever suggest that getting dressed in a uniform or shaving in order to bring oneself in compliance with work requirements is to be compensated. As for the idea that shaving is not compensable because it takes such a little amount of time, the employer notes that if an employee goes on vacation and grows a beard, the time taken to shave prior to work on the first day back is not so little.In Ontario Power Generation and Power Workers Union (Murray), a case relied on by the employer, the Arbitrator held in discussing a similar union claim:
With respect to self-administered rapid antigen testing, there are benefits to having this performed by employees on their own time. The employer will know before the employee reports to work if there is a positive test result. This fact favours self- administered testing because a positive result can lead to immediate employer action to isolate the employee prior to entry into the workplace. It is also more efficient. The time involved in rapid antigen testing process is minimal. Results can be obtained in 15 minutes by employees who are not in the workplace. In contrast it takes approximately 30 to 45 minutes on average for an employee to leave their post, take the test, and return. Additionally, to compensate employees for the time involved in self-administered tests (outside the workplace) may act as a disincentive for such employees to get vaccinated. This would not be consistent with OPG’s rational objective to have as many employees vaccinated as is possible.
In sum, the legitimate interests of both parties are balanced by granting the PWU an order that the tests for the unvaccinated shall be paid for by the employer and by refusing an order that OPG compensate employees for the time spent outside normal working hours in self-administering the rapid antigen test.
- Similarly, Arbitrator Stout in Hydro One. Inc. and Power Workers’ Union (Re.: Grievance No: : HO-P-136) unreported dated November 22, 2021 stated with respect to this issue:
I. Testing Costs
I find that the award of Arbitrator Murray in Ontario Power Generation and Power Workers Union (OPG-P-185) dated November 12, 2021, provides guidance and is eminently reasonable. There are some individual considerations that must be taken into consideration based on Hydro One’s operations. Therefore, I order as follows:
Employees who have not confirmed that they are fully vaccinated are required to self-administer the rapid antigen test, and the cost of providing such tests is to be borne by Hydro One. This order is without prejudice to Hydro One being able to bring this issue back before me on 30-days’ notice.
Employees are required to self-administer rapid antigen tests on their own time, prior to reporting to work, and are not entitled to compensation for the time spent in the administration of the test or in the reporting of the results Hydro One will consider reasonable compensation, on a case by case basis, for those granted a medical or religious exemption for administering the rapid antigen tests. In addition, Hydro One will consider reasonable compensation, on a base-by-case basis, for those employees who are required to travel to obtain a PCR test. Any individual situation where the parties cannot agree on the reasonableness of how Hydro One has treated an individual employee may be brought before me at the monthly arbitration hearing.
- The employer also relies on Finning (Canada), a division of Finning International Inc. and IAM Vancouver Lodge (Southern), 2022 CanLII 25773 (BC LA) [2022]. That case involved a grievance challenging as unreasonable, the employer’s covid policy, including whether the requirement that unvaccinated employees take the test on their own time without pay. After finding that mandatory covid testing was a required safety item and it was not reasonable to require employees to bear the costs of providing the tests, the arbitrator discussed whether it was reasonable to require employees to take the test on their own time without compensation:
57. However, I do not agree with the Union that the Employer must pay for the time it takes the employee to take the test as “time worked.” Although there is reference to the Rapid Test taking 40 to 60 minutes, it was clarified that refers to the time it takes the service provider to administer the Rapid Test, and the employee is not actively engaged in that process for most of that time. With respect to “time,” I find the time required of the employee to take the test is de minimus. They are able to take the test in the comfort and privacy of their home. I do not find it unreasonable, in all the circumstances, including factoring in that this is a choice they are making when another choice (being vaccinated and disclosing that) is also available them. I find that the time required of the employee for taking a Rapid Test is not significant enough to be considered a demand on an employee’s personal time that would warrant compensation.
- A similar result was reached in Algoma Steel Inc. v USW, Local 2724, 2022 CanLII 22896 (ON LA) (Kaplan) and Unifor Local 973 v. Coca-Cola Canada Bottling Limited, 2022 CanLII 20322 (ON LA) (Wright) where policies requiring thatemployees conduct rapid testing on their own time without compensation were found to be reasonable.
- The union relies on cases which have determined that an employer requirement to perform tasks outside of normal working hours constitutes a requirement to work. In Insurance Corp. of British Columbia v. O.P.E.I.U., Local 378 2002 CarswellBC 3320, [2002] B.C.C.A.A.A. No. 109, 106 L.A.C. (4th) 97, 68 C.L.A.S. (Hall) thearbitrator determined a grievance regarding the employer’s requirement for employees to complete, as part of training, a written assignment at home. The arbitrator referred to a number of well-established authorities in determining that the written assignments constituted work:
27 The authorities advanced by the Union present an obstacle to relying on evidence of past practice. Arbitrators have generally accepted the proposition that, where an employer makes a claim on an employee’s time, the employee is entitled to compensation in the absence of some specific collective agreement provision to the contrary: Allied Chemical Canada Ltd. v. U.A.W., Local 89 (1973), 3 L.A.C. (2d) 267 (Ont. Arb.) (O’Shea).
29 The Dominion Stores case and numerous other authorities were reviewed in Steinberg Inc. v. U.F.C.W., Local 486 (1985), 20 L.A.C. (3d) 289 (Ont. Arb.) (Foisy). The arbitrator summarized his view of the jurisprudence:
…”time worked” depending on the circumstances may include activities other than those included in an employee’s job description and those which he usually performs every day Unless very specific language is
found in a collective agreement, the preferred interpretation is one which will offer the parties the flexibility to meet with the factual situations as they arise. (p. 296)
30 Another training case is British Columbia Government v. B.C.N.U. (April 5, 1993), Doc. A-109/93 (B.C. Arb.), unreported (Kinzie). The grievor had been required to take a first aid course and submitted a claim for time spent at the course and on home study. A clause in the collective agreement entitled employees to leave “without loss of basic pay” for courses taken at the employer’s request. The employer paid the grievor for the hours of classroom study during the day, but refused to pay for time spent on home study in the evening. The union claimed overtime compensation. Arbitrator Kinzie held Dominion Stores and Steinberg Inc. stand for the following proposition:
… if an employer requires an employee to take a training course or engage in a similar activity, even if it is outside regular working hours, the time put in by the employee is work for which he is entitled to be compensated at the “appropriate rate” under the collective agreement. (QL p. 6; emphasis added)
31 On the facts, Arbitrator Kinzie found the first aid course conflicted with the collective agreement clause entitling the grievor to leave “without loss of basic pay”. The course required home study outside the grievor’s regular hours, while the clause did not contemplate her having to perform such work. Arbitrator Kinzie believed he did not have jurisdiction to award the requested remedy of overtime pay because that would have conflicted with the collective agreement. The Labour Relations Board held otherwise on review, and set aside that aspect of
the award: see British Columbia Government v. B.C.N.U. (October 21, 1993), Doc. B344/93.C. Arb.)
32 Thus, as the Union argues, arbitrators have given a flexible interpretation to the types of activities which constitute “work” under a collective agreement.
Generally speaking, where an employer makes a claim on an employee’s time, the employee is entitled to compensation. Such claims on an employee’s time include training and similar activities taken at the employer’s direction outside of normal working hours. In the absence of a specific provision to the contrary, the employee is entitled to compensation at “the appropriate rate”. (Emphasis added)
The union also relies on cases that came to a similar conclusion in different circumstances for essentially identical reasons. In Oxford (County) v. C.U.P.E., Local Sub-Unit 1146, 2003 CarswellOnt 9592, [2003] O.L.A.A. No. 368, 117 L.A.C. (4th) 215, 73 C.L.A.S. 315
(Devlin) the arbitrator held that travel time to attend a mandatory computer course outside of the workplace was work. In Health Sciences Assn. of Alberta and Alberta Health, 2022 Carswell Alta 233 (Abells) the arbitrator found that attendance at layoff meetings held outside normal working hours was compensable working time.
Decision on Compensation Issue
- The applicable test for determining whether a required activity constitutes work is set out in the cases referred to by the union which are cited above: “Generally speaking, where an employer makes a claim on an employee’s time, the employee is entitled to compensation”. There is no question that the employer has made such a claim on the employees’ time in these circumstances where the employer insists that an employee must self-administer a medical test and fill out an electronic form within a specified timeframe and there is often no practical way for that test to be completed during working hours.
- While the employer’s cases are, in a sense, “on point”, in that they find compensation not owing for covid testing, they are distinguishable by the fact that in each case the requirement to rapid test involved employees who had chosen not to be fully vaccinated. In other words, those cases all involve circumstances where employees had a choice of whether to vaccinate or to test. If the employee became fully vaccinated, then there was no requirement to spend personal time engaged in regular covid testing. The employees therefore had a choice, and it was reasonable for the employers not to have to pay for the time associated with that choice. Indeed, in the Finning and Ontario Power Generation cases there was specific reference to the idea that the employee’s choice to take the tests, rather than get vaccinated meant that the employer was not responsible for paying for the time spent because of that choice. For example, in Finning the arbitrator stated: “I do not find it unreasonable, in all the circumstances, including factoring in that this is a choice they are making when another choice (being vaccinated and disclosing that) is also available to them”. On the facts before me, there is no such choice; the employees are vaccinated, and they must do regular testing.
- I observe that two of the cases relied on by the employer actually provide support for the idea that a requirement to take a covid test is work. In this regard, in the Finning case the arbitrator found that “the time required of the employee to take the test is de minimus”. In other words, the arbitrator did not find that taking the test was not “work” but only that the time doing the test was of insufficient duration to attract compensation. In Arbitrator Stout’s Hydro One award he directed the employer to “consider reasonable compensation, on a case-by-case basis, for those granted a medical or religious exemption for administering the rapid antigen tests.” This suggests that part of the underlying rationale for denying pay for the tests for regular unvaccinated employees was in recognition that, in contrast to non-exempt employees, medically/religiously exempt employees had not made a choice and could therefore be compensated for the time spent administering the test. Employees who did not make a choice, such as those medically exempt from vaccination, were possibly entitled to be paid reasonable compensation for the time spent taking tests.
- In addition, the cases relied on by the employer are further distinguishable by the fact that, it appears, there was not the sort of reporting requirement that exists on the facts before me. It is obvious that the employer had many alternatives when it came to employees reporting the results of the tests. It could have simply trusted employees without any reporting at all. It could have had the employee send an email to their supervisor to certify that they tested negative, and they had no symptoms. It could have had the employee show up at work with a photo of the test strip and present that photo to their supervisor.
- Instead, the employer chose a reporting system that was quite detailed and, perhaps, cumbersome. The ORSS application requires some amount of data entry. While the time necessary for completing the report will be less over time as the employees become more efficient, at using it, there is a limit to how fast the reporting can be completed, likely about two to five minutes. This, added to the time for taking the test is not insignificant, and must be accomplished three times per week. I do not mean to criticize the employer’s choice of reporting mechanism. One can imagine all sorts of good reasons the employer chose the application it did. However, the effect of that choice was to impose a burden on employees during off work time.
- Moreover, the time involved here is not de minimus. I agree that there are circumstances where working in off work hours is de minimus and does not attract compensation. For example, if an employee randomly met her manager in the supermarket and the manager asked, “how is that report coming along?” and the employee answered: “almost done” that is almost certainly de minimus. However, in my view whether work is de minimus has both a time and a frequency component. Here the time is, perhaps, not so significant (10 minutes if the employee does the test and reporting in the most efficient way possible). However, the requirement to do that work was not a one off; it was a regular obligation two to three times a week. Had the employer asked employees to respond to emails for 10 minutes (at a minimum) on their off-work time three timesper week, there could be no serious argument that was not enough to attract compensation.
- Moreover, there are two differences between testing/reporting and shaving/getting dressed. The first is that shaving and getting dressed, like the time spent traveling to get to work, have never been considered “work”. Testing/reporting are a new requirement for employees and, in my view, must be considered on their own merits. The second difference is that shaving and getting dressed are nothing like any work performed by government employees. On the other hand, filling out forms or similar paper work is a routine part of many government employees including employees who work in corrections.
- Finally, as for the employer’s not shaving while on vacation analogy, that again involves an employee choice; had the employee chosen to shave while on vacation they would not have to engage in a lengthy shaving process on their first day of work following vacation.
- I appreciate and am sympathetic to the fact that the employer is trying its best to deal with the pandemic and that it implemented these measures for the benefit of persons living in congregate settings and its employees. However, the fact that there was/is a health crisis does alter the definition of work or negate collective agreement rights (except where specifically mandated by legislation).
- For these reasons, I find that what was required of the employees is work and attracts compensation. Although there was not agreement on the amount of time it took for employees to complete the test and submit results, I find that the total disruption to the employees’ day amounts to approximately 10 to 15 minutes if done efficiently.
Is this a “Call Back” for which Call Back Pay is due?
- Having found that the testing and reporting constitutes work, I must determine whether employees are entitled to Call Back pay under the collective agreement. The Union claims that the testing and reporting constitutes a “call back” within the meaning of Article COR9 of their collective agreement. If it does, employees are entitled to be paid 4.5 hours pay at overtime rates each time they test/report on non-work hours. The relevant articles state:
ARTICLE COR9 – CALL BACK
(RPT)
COR9.1 An employee who leaves their place of work and is subsequently called back to work prior to the starting time of their next scheduled shift shall be paid a minimum of four
(4) hours’ pay at one and one-half (1½) times their basic hourly rate.
COR9.2 Where an employee is contacted by the Employer outside the workplace prior to the starting time of their next scheduled shift, in circumstances where such contact is considered to be a “call back to work” but the employee is not required to physically attend at the workplace, the employee shall be paid a minimum of four (4) hours’ of pay at one
and one-half (1½) times their basic hourly rate. The initial call and any subsequent calls during that same four hour period, will be treated as a single “call back to work” for pay purposes.
- In asserting that these Articles apply to the testing/reporting requirement, the union relies on the purposes of such “call back” provisions and argues that, despite the words “call back”, employees are not required to physically re-attend at the workplace to earn call back pay. In Markham Stouffville Hospital v. C.U.P.E., Local 3651, 2007 CarswellOnt 8024, 167 L.A.C. (4th) 425, 91 C.L.A.S. 334 theboard of arbitration was faced with a claim for call back pay from mechanics who were called at home in order to resolve technical issues with equipment. The clause at issue was a “reporting pay” provision and stated:
15.05 — Reporting Pay
Employees who report for any scheduled shift will be guaranteed at least four (4) hours of work, or if no work is available will be paid at least four (4) hours except where work is not available due to conditions beyond the control of the Hospital. The reporting allowance outlined as herein shall not apply whenever an employee has received prior notice not to report for work. Part-time employees scheduled to work less than seven and one-half (7 1/2) hours per day will receive a pro-rated amount of reporting pay
- The arbitration board found that reporting pay was earned and stated:
22 We see from this that the key difference between the