Rapid Antigen COVID-19 Testing – Who Should Pay?

By Ron Minken, Tanya (Tejpreet) Sambi and James Moon

The question of whether the cost of COVID-19 rapid antigen tests for unvaccinated employees should be paid by employees or employers and whether such testing should occur during the employee’s work hours was discussed in a recent arbitration hearing between Ontario Power Generation (“OPG”) and the Power Workers Union (“Union”).

The Arbitrator, John C. Murray, allowed the Union’s grievance in part. Although the rapid antigen testing must be self-administered on the employees’ own time, the Arbitrator held that the costs associated with running and administering the testing program should be covered by the employer.

Facts

The OPG’s Policy required that all staff, including unionized employees, be vaccinated or undergo rapid antigen testing two times per week. Unvaccinated employees or those who refused to disclose their vaccination status were required on their own time to:

self-administer COVID-19 rapid antigen tests twice weekly, with 48 hours between tests;
video-record themselves self-administering the test, or have a third-party record them;
take a photo of the test result;
upload the video and photo through an online portal;
pay $25 to OPG to cover administration costs associated with running the COVID-19 testing program and agree to have this amount deducted from their pay, or if unwilling to agree to the deduction, procure two of their own test kits per week, and follow the same procedures listed above; and
employees who refuse to test would be placed on an unpaid leave of absence for a maximum of six weeks and will be terminated for cause if still no compliance after six weeks

Arbitrator Decision

Rapid Antigen Testing Program Costs Paid by the Employer

The Arbitrator held that the cost of Rapid Antigen Testing Program is to be paid by the employer. The Arbitrator agreed with the Union’s argument that the requirement to pay for rapid antigen tests by the employer will inflict,

“a disproportionate and unreasonable financial burden upon the affected employees… if the rapid antigen tests are no longer provided by the province, the cost to the employee could amount to hundreds of dollars per month.”

Employees must Administer the Testing on their own Time

However, the Arbitrator disagreed with the Union’s argument that the time spent in the administration of the test should also be borne by the employer rather than an employee on their own time. The Arbitrator in addition included several reasons why it is more advantageous for employees to self-administer rapid antigen testing on their own time,

“there are benefits to having this [rapid antigen testing] performed by employees on their own time. The employer will know before the employee reports to work if there is a positive test result…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.”

Takeaways on Rapid Antigen Testing

The vaccination policy should clearly state that the employer will pay the cost of rapid antigen COVID-19 testing. If employees have been paying the cost to date, employers should fully reimburse these employees. The policy should further say that employees must administer the testing on their own time and that the employer is not responsible to pay for this time.

How Minken Employment Lawyers Can Help

If you require legal advice on how this decision may potentially impact your workplace, drafting a vaccination policy or whether your vaccination policy is exceeding your requirements under the Ontario Occupational Health & Safety Act and how to avoid liability, contact us today to speak with one of our lawyers or call us at 905-477-7011 for assistance prior to taking any steps that may expose you to legal liability.

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Please note that this article is for informational purposes only and does not constitute legal advice.