Ontario: Does an employer have to pay for the time an employee takes to get tested for COVID-19?

[vickyp]

#102764

Forum: Community

Good morning.  I have a construction client that is asking if they have to pay their employees for time the employees spent going to get tested for COVID.  
Basic background: 1. Workers were working on a job in Chatham at a company. 2. The company had a security guard who’s wife tested positive for COVID, but he still came to work. 3. The company & the general contractor shut the job down and said that everyone had to be tested before returning (even though they did not have close contact with the security guard).
So basically, by health unit regulations these workers did not have to get tested, they did not choose on their own to get tested, they were instructed by their supervisor to get tested. My client is asking if there is any requirement, legislation that states he has to pay the workers for their time getting tested (some had to wait four hours to get tested).
I know what common sense says, but he is asking for something concrete in writing saying he has to pay and I cannot find a whole lot regarding employer’s responsibilities regarding paying workers in respect to COVID related costs. Thank you.

[vickyp]

#103205

There’s a good reason you can’t find anything. There’s nothing to find. The consensus seems to be that employers must pay to ADMINISTER COVID-19 tests at the workplace. But the Q of whether an employer must pay for an employee’s time to be tested by a third party isn’t addressed anywhere that I know of. With that in mind, there are 2 things you need to consider:
1. ESA Definition of Compensable Work Time: I’ve seen guidance from the US suggesting that testing time counts as compensable work time under federal Fair Labor Standards. But I haven’t seen anything equivalent to this in Canada. And the Ontario ESA doesn’t offer much help. I’ve attached the relevant definition from the ESA Regs below. As u can see, being tested doesn’t fall into any of the things listed as counting as work under Sec. 1.1(1); an argument could thus be made that it counts as “private affairs or pursuits” not covered as work time under Sec. 1.1(2).
2. Contracts: The other thing to check is the terms of the workers’ contract or collective agreement and how it defines work time.
Final note: OHS laws do require employers to pay for certain kinds of mandatory medical testing, e.g., auditory testing for workers exposed to hazardous noise levels. But, of course, COVID isn’t expressly addressed in those laws. And I’d argue that the testing required is for workers exposed to specific work hazards associated with a particular type of work, e.g., noise, asbestos, lead, etc. Exposure to COVID might fall into that category for healthcare workers but not other kinds of work where COVID exposure is basically the same as being out in the community. That includes construction. This is the way the OHS agencies have been interpreting work refusal rights and the same logic applies to COVID testing, IMHO.
In short, unless your contract requires it, I don’t think there is any specific law requiring you to pay for a worker’s time in getting tested. Glenn
*****
ON ESA Regs. When work deemed to be performed
1.1 (1) Subject to subsection (2), work shall be deemed to be performed by an employee for the employer,
(a) where work is,
(i) permitted or suffered to be done by the employer, or
(ii) in fact performed by an employee although a term of the contract of employment expressly forbids or limits hours of work or requires the employer to authorize hours of work in advance; or
(b) where the employee is not performing work and is required to remain at the place of employment,
(i) waiting or holding himself or herself ready for call to work, or
(ii) on a rest or break-time other than an eating period. O. Reg. 526/17, s. 2.

(2) Work shall not be deemed to be performed for an employer during the time the employee,
(a) is entitled to,
(i) take time off work for an eating period,
(ii) take at least six hours or such longer period as is established by contract, custom or practice for sleeping and the employer furnishes sleeping facilities, or
(iii) take time off work in order to engage in the employee’s own private affairs or pursuits as is established by contract, custom or practice; or
(b) is not at the place of employment and is waiting or holding himself or herself ready for call to work. O. Reg. 526/17, s. 2.

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