Can Employees be Mandated by Employers to Take the COVID-19 Test?
The general answer is yes, your employer can require you (an employee) to take the Covid-19 test because employers have a legal obligation to provide a safe work environment and prevent the spread of the virus. Further, employers have the discretion to manage and set the rules in their workplace as long as they do not breach the law or significantly alter the terms of the employment contract. Hence, requiring a Covid-19 test in light of the increasing number of COVID-19 cases would provide the employer with justification to require that their employees take the COVID-19 test. Employees are therefore cautioned to follow the rules put in place as a precaution to reduce the risk of Covid-19 in their workplace.
Even though employees may have a breach or invasion of privacy claim against their employer, requiring a test is not a significant breach of privacy due to the nature of COVID-19. Ultimately, if privacy issues are raised, the intrusiveness of the test (a swab up the nose) would be weighed against the problem to be addressed which is preventing the spread of COVID-19 in the workplace.
Tips for Employers
Employers have the right to dismiss employees with notice, for almost any reason, including when an employee refuses a lawful order. Therefore, if an employee refuses to take the COVID-19 test, employers will have the right to terminate the employment relationship by providing the employee with notice of termination or payment in lieu of notice.
Tips for Employees
An employee that is terminated because he/she refuses to take the COVID-19 test cannot come back to the courts to claim constructive dismissal. When faced with a COVID-19 request, it is advised that employees propose and canvas a more effective COVID-19 precaution. But if an employer is requiring the test, employees should comply if they want to keep their jobs. It should however be noted that if employees are required to take the test during their scheduled work hour, the employer is required to pay their employee for the time that they took of work to take the COVID-19 test.
If you require legal advice on employee or employer obligations regarding COVID-19 in the workplace, please contact Mackenzie Law.
Disclaimer: The contents of this blog are intended to provide a general guide on the subject matter and is not a substitute for legal advice. A lawyer should be consulted for your specific circumstances.