On March 17, 2021, the provincial government published guidance for businesses and employees with respect to voluntary, supervised self-swabbing for COVID-19 via rapid antigen point-of-care tests. These tests can be performed at workplaces by trained individuals and do not require shipping a specimen to a lab for processing. This guidance will make it easier for organizations to offer onsite testing as part of efforts to support a safe return to work.
Since November 2020, the province has been deploying rapid test kits to a variety of essential workplaces and sectors. The program is being expanded to first responders, emergency medical services, trucking and transportation, wastewater management, and post-secondary institutions. In the coming weeks, the province intends to deploy over one million tests per week in priority sectors.
Moreover, as the province continues to re-open, some employers have expressed interest in privately conducting asymptomatic COVID-19 testing. In response, Ontario has released guidance for individuals or organizations that voluntarily decide to participate in privately-initiated COVID-19 testing, in order to ensure there is appropriate oversight and consumer protection.
Prior to initiating testing, organizations must contact their local public health unit to advise them that the organization will be engaging in a private testing program. Private testing can only be performed using one of the types of tests permitted under the province’s testing guidance document. Positive results on rapid antigen point-of-care tests must be reported to the local public health unit, and individuals who test positive will also need to undergo a confirmatory lab-based PCR test at an assessment centre or participating community lab.
Crucially, this guidance does not provide employers with the authority to implement a mandatory COVID-19 testing program in a workplace. Employers are responsible for seeking independent legal advice on issues of human rights, labour and employment law, privacy, and occupational health and safety before implementing a testing program and developing a company policy related to COVID-19 testing.
Since an employee’s test result is sensitive information which may be disclosed to a third party (i.e., the local public health unit), employers should inform employees of the scope of information being collected and the purposes for which it will be used or disclosed. Where necessary, consent must be obtained for the collection, use, or disclosure of personal information. In addition, personal information should be stored securely with limits on access and retention.
Different Canadian jurisdictions have their own privacy legislation, and employers are responsible for complying with the legal requirements of the jurisdiction(s) in which they operate.
For more information, see the government’s press release, which also has links to the associated guidance documents. We will keep you informed as developments in this area arise.
