Many employers are struggling with whether to introduce vaccination mandates. Outside high risk sectors such as health or eldercare or industries where the government has mandated vaccination such as some transportation businesses, most are opting to require unvaccinated employees to take additional safety precautions such as working from home, wearing a mask at all times and maintaining social distancing rather than terminating the unvaccinated. One common further safety precaution is requiring unvaccinated employees to undergo regular rapid testing. However, mandating testing raises the related question of who should pay for it. With no end in sight to the COVID pandemic, employers are concerned with the potential cumulative cost of ongoing testing.
For the small minority of unvaccinated employees who can prove a bona fide medical or religious ground for not being vaccinated, Human Rights case law is fairly clear that the employer will have to pay the cost of testing as part of the burden of the “duty to accommodate”. What is less clear is whether employees who choose not to vaccinate for other reasons can be forced to pay for their own testing.
Most provinces prohibit employers from deducting amounts from employee pay unless the employee agrees in writing. In BC, the Employment Standards Act goes a step further and expressly prohibits employers from making employees pay “employer business expenses” (which is not defined). Thus it appears clear the employer cannot deduct testing costs from employee wages without written consent.
But what about simply requiring the employee to get tested and provide proof of a negative test as a condition of attending work, with any cost paid by the employee? Traditionally, other forms of health testing such as drug and alcohol testing have always been employer arranged and paid. In BC, employees could argue employers that testing is an “employer business expense”, since it is the employer that requires it.
However, in the case of COVID testing, employees can avoid the cost of testing by simply getting vaccinated. Put another way, it is the employee’s personal choice not to get vaccinated, when 85% or more of the adult population is fully vaccinated, that leads to the need for testing. Viewed from this perspective, the cost of testing is a result of the employee’s personal choice rather than an employer business cost.
While we are not aware of any case law directly on point, it appears arguable that employers may require their unvaccinated employees not covered by Human Rights exemptions to arrange for their own testing.
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