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OPS Rapid Antigen Testing (RAT) memorandum of settlement

March 15, 2023
View the decisionGSB# 2021-3633; 2021-4288OPSEU# 2022-0999-0005; 2022-0999-0004Memorandum of Settlement Between:The Crown in Right of Ontario as represented by the Treasury Board Secretariat (“the Employer”)andThe Ontario Public Employees Service Union (“the Union” or “OPSEU”)Whereas as a response to the COVID-19 pandemic, the Employer implemented The Safe Workplace Policy, which required mandatory rapid antigen testing and reporting for certain employees who work in congregate living settings, regardless of vaccination status, on or after January 24, 2022, including but not limited to all of Institutional Services, Ministry of the Solicitor General from February 18, 2022, onwards;And whereas the Union and employees in the Unified and Correctional Bargaining Units represented by OPSEU have filed numerous individual, group, and union policy grievances with respect to compensation for employees self-administering rapid antigen testing outside of their regular working hours;And whereas the Grievance Settlement Board (“GSB”) issued a decision on October 26, 2022, where it was determined the time during which rapid antigen testing and reporting is conducted outside of an employee’s work hours constitutes work and therefore attracts compensation;And whereas the parties have a mutual desire to resolve all outstanding matters regarding payment for the time required to take and report the results of a rapid antigen test as they relate to OPS employees in the Unified and Correctional Bargaining Units;Now therefore the parties agree to a full and final settlement of any and all outstanding matters related to payment for the time required to take and report the results of a rapid antigen test on a without prejudice and without precedent basis on the following terms and conditions:
  1. The Employer will compensate all OPSEU-represented employees who are subject to The Safe Workplace Policy, and its predecessor, as it applies to employees who work in congregate living settings and who are required to participate in rapid antigen testing and reporting requirements outside of paid working hours. The Parties agree to the following method of payment:
    1. January 24, 2022 to March 31, 2023, or until rapid antigen testing is no longer required by the Employer, whichever is earlier:
      1. For each week the employee has completed at least one rapid test, reported the result to the Employer, and attended the workplace for at least one shift, the employee will be compensated with a single payment of 30 minutes (0.5 hours) at the overtime rate. For clarity, the employee will receive a total of 30 minutes (0.5 hours) per week, irrespective of the total number of antigen tests and reported results conducted during the
      2. For each week the employee did not attend the workplace for any shifts for any reason, the employee will not be eligible for this payment.
      3. The Employer will review the employee’s attendance and test records and process the payment for this period by no later than August 31, 2023.
      4. The Employer may preclude payment for any week(s) which the Employee was not required to participate in rapid antigen testing and reporting. This includes but is not limited to weeks that the policy was not in effect (e.g. prior to February 18, 2022, for employees in Institutional Services), weeks an employee worked from home, or weeks an employee was exempt from testing requirements.
      5. The Employer may preclude payment for any week(s) during which the Employee was not required or refused to perform any rapid antigen test.
      6. For clarity, a week is Monday to Sunday
    2. Should rapid antigen testing and reporting continue to be required by the Employer, employees who are required to undergo rapid antigen testing and reporting outside of their regularly scheduled paid working hours shall be compensated as follows from April 1, 2023 to December 31, 2023:
      1. For each rapid antigen test an employee is required to complete and report, the employee will be compensated with a single payment of 10 minutes (0.17 hours). This payment will be at the overtime rate for fulltime employees who are required to undergo the testing, and shall be at the straight time rate for fixed-term employees unless they meet the threshold the overtime rate under Article 31A.3.
      2. If an employee is working fulltime hours on a Compressed Work Week Agreement (CWWA) their eligibility for payment of the overtime rate under this paragraph will be based on their CWWA averaged hours of 36.25 or 40 per week. Where an employee exits a CWWA schedule in the middle of a cycle, any subsequent testing will be paid per 1b(vii) above.
      3. The Employee or Employer will enter their time into WIN and the Employer will approve the time, per normal practice.
      4. The Employer may deny any time entered if they have not received reporting of the rapid antigen test.
      5. Employees will only be entitled to claim the minimum number of tests required to attend the workplace, as determined by the Employer. For clarity, Employees will not be eligible for compensation for any testing or reporting they submit that they were not required to submit.
    3. Employees who are compensated for overtime in accordance with Articles UN8.7.1, 7.4, COR8.4 or COR8.7.1 shall receive their payment under paragraphs 1(a) or 1(b) above in compensating time off in accordance with the collective agreement.
    4. Should rapid antigen testing and reporting continue beyond December 31, 2023, the Parties will meet at CERC and BMERC to discuss the future payment protocol. Nothing in this Memorandum will prevent the Union or its members from filing grievances after December 31, 2023 respecting payment for the time incurred to take and report the results of a rapid antigen test if the parties are unable to reach agreement on a future payment protocol.
  2. The Parties agree the terms of this settlement do not apply to any employees who would have been exempt from the rapid antigen testing and reporting requirements under the OPS COVID-19 Safe Workplace Directive, the Supplemental Directive, the OPS Safe Workplace Policy, or any other Employer direction. Further, the terms of this settlement do not apply to any employees who were permitted to partake in rapid antigen testing and reporting during paid work hours.
  3. The practice of rounding overtime to the “nearest half-hour” does not apply to this MOS. No overtime payment made under this agreement will apply to an employee’s Hours of Opportunity Total (HOT), or for hours of fair and equitable distribution under Article 2 and COR8.2. Further, the overtime payments will not count towards a fixed-term employees straight-time hours for the purposes of seniority or salary progression.
  4. The parties agree that the terms of this Memorandum apply to OPSEU- represented employees who are required to undergo testing under the Safe Workplace Policy, and its predecessor, including: Institutional Services, SOLICITOR general; Youth Justice Division, Ministry of Children, Community and Social Services and; the Child and Parent Resource Institute, Ministry of Children, Community and Social Services.
  5. The Union will identify any other departments (branch, division, ministry) in the Unified Bargaining Unit that it believes the Safe Workplace Policy or its predecessor applied and therefore eligible for the payments under this Memorandum of Settlement, by no later than March 15, The Employer will review the list and respond to OPSEU on which positions they agree with by March 30, 2023.
  6. The Union agrees to withdraw Union grievances 2022-0999-0005 (GSB#2021- 3633) and 2022-0999-0004 (GSB#2021-4288). The Union further agrees that any grievances (individual, group or union/policy) in respect of payment for the time required to take and report the results of a rapid antigen test outside of paid working hours is hereby withdrawn. The Union will notify the GSB and the Employer of its withdrawal of the grievances forthwith upon the execution of this
  7. The Union will advise the Employer of any employees seeking compensation for purchasing new personal internet/data as a result of the rapid antigen testing and reporting requirements by April 30, 2023. Should there be any requests for payment the Employer will review the request pursuant to Paragraph 44 and 45 of the October 26, 2022 GSB decision. The request will include an affirmation that the internet/data plan was purchased solely for the rapid antigen testing and reporting requirements and include proof of purchase (i.e. the invoice/bill). Arbitrator McLean will remain seized on any disputes with respect to denial of
  8. The Union hereby releases and forever discharges the Crown in Right of Ontario, the Employer, its employees, Ministers, Deputy Ministers, office holders, directors, servants, and agents of and from all actions, causes of action, grievances, claims and demands as they relate to payment for the time required to take and report the results of a rapid antigen test for the period up to December 31, 2023.
  9. This Memorandum of Settlement constitutes the entire agreement between the parties and supersedes any and all other oral or written agreements, arrangements, or understandings.
  10. Any disputes arising from the implementation of this settlement, including disputes as to whether or not any employee has been properly compensated in accordance with paragraph1, will be referred to Arbitrator Brian McLean at the Grievance Settlement Board.
Dated this 27th day of January, 2023For the Union:For the Employer:

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