Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In a News Release dated March 17, 2021, Ontario announced it was removing regulatory restrictions to make it easier for organizations to conduct on-site COVID-19 testing in the workplace. Asymptomatic employees can now voluntarily self-swab for a rapid antigen point-of-care test under the supervision of a trained individual. Employees who test positive must still take a lab-based polymerase chain reaction (PCR) test at an assessment centre or participating community lab to confirm the rapid antigen test result.1
Ontario has published a guidance document, “COVID-19 Guidance: Considerations for Privately Initiated Testing” (Guide), outlining the minimum considerations and requirements for such initiatives. Furthermore, it has expanded the program to first responders, emergency medical services, trucking and transportation, wastewater management, and post-secondary institutions.
The Guide outlines various testing requirements for organizations. For example, among other things, organizations:
- Must contact their local public health unit before they initiate testing to make them aware that they will be engaging in a private testing program;
- Should plan, develop, and operationalize policies and procedures related to testing;
- Should have a systematic procedure in place to follow up on test results;
- Should have plans in place to respond should any individuals be exposed to, or diagnosed with, COVID-19;
- Must report all positive COVID-19 tests performed to the local public health unit in accordance with the Health Promotion and Protection Act; and
- Must ensure that all personal and health information of their workers will be collected, used, and disclosed in accordance with all applicable legislation.
Bottom Line for Employers
When organizations privately offer COVID-19 testing of employees in the workplace, a number of legal issues may arise, including those relating to labour and employment , human rights , privacy , and occupational health and safety law. Before implementing such a testing program, employers are strongly encouraged to seek the advice of experienced labour and employment counsel.
1 Ontario is not the only province to permit rapid screening tests by organizations. On March 15, 2021, British Columbia’s Centre for Disease Control Access announced that publicly funded Rapid COVID-19 Point of Care tests would be made available to industries and organizations meeting the indications outlined in BC’s Rapid Point of Care Testing Strategy. On March 23, 2021, Alberta announced that free rapid COVID-19 tests would be made available to employers that submit a screening program plan.