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Mandatory coronavirus tests at work legal, experts say

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Coronavirus testing (File photograph by Akil Simmons)
Juliana Snelling, director at Canterbury Law (File photograph)
Gambrill Robinson, associate attorney at Canterbury Law (File photograph)

Employment law experts said that mandatory coronavirus tests in workplaces was lawful if “reasonably” justified by a duty of care.

Juliana Snelling and Gambrill Robinson, of Canterbury Law, looked at the legalities after the Bermuda Employers’ Council said that “many” employers had considered compulsory tests or use of the Government’s SafeKey scheme for staff.

The two said that tests could apply to vaccinated and unvaccinated workers – but that a different approach could be taken for each.

Ms Snelling, a director of Canterbury Law, said: “Canterbury Law agrees with the Bermuda Employers’ Council that mandatory Covid-19 testing in the workplace is lawful in circumstances where the employer’s duty of care to provide a safe workplace reasonably justifies such a measure.”

Ms Robinson, an associate at the firm, added that employers had probably introduced policies in line with Government requirements for tests after coronavirus infection, close contact with a positive case or overseas travel.

She said: “Companies may lawfully require their employees to submit the results of these tests to a designated person before employees are allowed to return to the workplace.”

Ms Snelling said: “It is not much of a leap, given the current wide community spread in Bermuda, for employers to want to require employees to undergo mandatory Covid testing on a regular basis to help keep the workplace safe.”

But she warned: “The golden rule for employers when it comes to the whole issue of Covid-19 is to act reasonably, taking objectively reasonably justifiable measures.

“Employers should consider whether the implementation of mandatory Covid testing for employees on a routine basis is reasonable for their workplace, taking into consideration all the relevant circumstances including the prevalence of the virus, whether other safety protocols in their workplace are able to control the risk of transmission in the workplace, such as masking, sanitising, social distancing, ventilation, screening, et cetera.

“Important considerations will include the nature of the workplace and the population demographics of the workplace and its clients.”

Ms Snelling added: “In a well ventilated office where a relatively small number of employees are able to remain socially distanced, do not generally share any communal workspaces, and are able to sanitise regularly, it may be considered unreasonable to require that employees undergo regular mandatory Covid testing as a condition of continued employment.

“Note that mandatory testing regimes will always be easier to implement for incoming, new employees as opposed to for existing employees.”

Ms Snelling highlighted that the legality of mandatory Covid-19 tests was considered in at least three arbitration decisions in Ontario.

The province’s human rights legislation was the basis for Bermuda’s 1981 Human Rights Act.

Ms Snelling said: “In all three cases, the labour arbitrator upheld the policy as a reasonable measure to protect the health and safety of employees from the risks posed by Covid-19 in the workplace.”

She added that many organisations in Ontario with requirements related to Covid-19 would introduce mandatory staff tests as an alternative to mandatory vaccinations or for people who could not be vaccinated for medical or “genuine religious reasons”.

She said: “Of note, the position of the Ontario Human Rights Commission … is that a person who chooses not to be vaccinated based on mere personal preference does not have the right to insist, from a human rights perspective, on alternative accommodations in the particular workplace concerned.”

Ms Snelling added that employers could follow the example of schools such as Warwick Academy, where rapid antigen tests will be used to “add a broad and regular layer of surveillance” to help keep classrooms open.

Ms Robinson said: “The obvious question then arises whether, if an employer believes they have reasonably justifiable grounds for demanding Covid testing, only unvaccinated employees should have to submit to testing or whether all employees be required to test.

“Of course, less legal risk arises if all employees – and not just unvaccinated employees – are subject to the same periodic testing as this will stave off potential human rights discrimination claims.

“Having said that, it is logical for employers to want to only test unvaccinated employees regularly for Covid-19, given that the science has repeatedly shown that all the attendant health risks are that much higher with unvaccinated employees …”

But Ms Snelling added: “Given that the current community spread includes vaccinated employees and that vaccinated employees can pass on the virus like everyone else, and to reduce the potential for discrimination claims as well as more division among our people, employers might consider it sensible to require vaccinated employees to undergo antigen testing once a month and unvaccinated employees to do so at least once weekly in accordance with SafeKey requirements, like the hotel workers are already doing.

“If rapid antigen home testing kits are used, the frequency of testing can easily be increased for both types of employee.”

Ms Robinson pointed out that a legal advantage of using the SafeKey system was that workers did not have to reveal their vaccination status.

SafeKey QR codes can be issued to people who are fully vaccinated or have had a negative result from a coronavirus test taken inside 72 hours.

Ms Robinson said: “Employees can choose to maintain their privacy – vaccination status – and the employer can receive the important information that they have via a SafeKey without making an overt distinction between vaccinated and unvaccinated employees.

“However, a drawback from employing SafeKey that employers may want to consider is that there is then no requirement for testing vaccinated employees.

“SafeKeys are automatically renewed electronically for vaccinated persons without testing requirements.”

Ms Robinson added that employers might consider periodic testing of vaccinated workers, which would mean knowledge of who had been given the shots.

She said: “Our experience is that vaccinated employees are generally open and transparent about the fact that they have been vaccinated.”

* To read the Canterbury Law comments in full, click on the PDF under “Related Media”.