A recent decision of the Canada Industrial Relations Board (Board) affirms that COVID-19 tests are not considered genetic tests under the genetic testing provisions of the Canada Labour Code (Code), and that, depending on the circumstances, the issue is likely one that is appropriately dealt with under a collective agreement rather than a complaint to the Board.
Background
The complainant was a full-time driver for DHL Express (Canada) Ltd. (DHL). In response to the COVID-19 pandemic, DHL implemented a COVID-19 vaccination policy that required employees, in order to work in DHL's facilities, either to be fully vaccinated or take a COVID-19 test of their choice and provide evidence of a negative COVID-19 test result twice a week.
The complainant did not become vaccinated or provide evidence of negative COVID-19 test results as required, and DHL disciplined him for his failure to comply with its vaccination policy.
The complainant filed a genetic testing complaint against DHL with the Board under section 247.99(1) of the Code, which allows employees to file a complaint if they allege that an employer has taken action against them in relation to a genetic test. The complainant asserted that DHL disciplined him contrary to section 247.98(4) of the Code because he refused DHL's request to undergo a genetic test and to disclose the results of a genetic test.
The term "genetic test" is defined in section 247.98(1) of the Code as "a test that analyzes the employee's DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis."
The Board's Findings
The Board considered three arguments as to why it should dismiss the complaint on a preliminary basis:
- the complaint was untimely
- the subject matter was covered by a collective agreement and the Board may reject the complaint pursuant to section 247.99(6.5)(a)(vi) of the Code
- COVID-19 tests are not genetic tests within the meaning of the Code
The Board found that the complaint was timely, because it was filed fewer than 90 days after the complainant knew of the action or circumstances giving rise to his complaint.
The Board was satisfied that the issues raised in the complaint were covered by the collective agreement and that an arbitrator had jurisdiction to determine these issues, including the issue related to genetic testing. The Board found that this was a valid reason for dismissal but did not exercise its discretion to dismiss the complaint on this basis. Rather, it held it was appropriate to determine the question of whether COVID-19 tests were genetic tests, as such a ruling could provide clarity for federally regulated employers and employees moving forward.
COVID-19 Tests Not Considered Genetic Tests
The parties provided expert witness reports and written cross-examination questions and answers on the issue of whether rapid antigen tests (RATs) and polymerase chain reaction (PCR) tests—which are both used to test for COVID-19—are genetic tests.
All three witnesses agreed that RATs were not genetic tests. The complainant's expert witness argued that two specific types of PCR tests are genetic tests because they amplify a specific piece of human RNA. DHL's expert witnesses clarified that these PCR tests do not analyze this piece of human RNA or any other genetic material.
The Board ultimately found that neither COVID-19 RATs nor PCRs were genetic tests within the meaning of the Code. The tests analyzed either the viral proteins or genetic material of the COVID-19 virus. Neither test analyzed an employee's DNA, RNA or chromosomes and, as such, they were not captured under the Code's definition of genetic test.
Based on this determination, and in a unanimous decision, the Board concluded that DHL's policy of mandatory COVID-19 tests did not require the complainant to undergo a genetic test. Accordingly, the Board dismissed the complaint.
Employer Takeaways
This decision provides welcome clarity to federally regulated employers who may be facing similar claims from employees or unions in their workplace that COVID-19 tests constitute a "genetic test" for the purpose of the Code.
DHL was represented in this case by Hicks Morley's Gregory Power and Nicole Nowoselski.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.