Mandatory PCR testing

Your employer should have consulted with either you, your representative or (if applicable) your union before bringing in a mandatory testing policy

If, however, a policy has been implemented, your options will turn on whether your employer’s instruction is reasonable and lawful in the eyes of the law. As discussed below, if your employer’s instruction is reasonable, non-compliance potentially could result in your employer commencing disciplinary proceedings against you.

Is the instruction reasonable?

The starting point in assessing reasonability is to check whether there is a specific clause within your employment contract that grants your employer the right to require you take COVID tests. The existence of such a clause would likely mean that the testing policy is reasonable

The nature of your role, in particular whether it involves being in close physical proximity with others, will also affect whether such an instruction is reasonable

If your job necessarily involves contact with others, and therefore the risk of the transmission of COVID, it is more likely that an instruction to test frequently will be a reasonable one. If, however, adequate social distancing could reduce the risk of infection sufficiently, the instruction is less likely to be reasonable.

Another important consideration is whether your employer has brought in the policy of its own accord or as a result of an external demand from a client or another third party. A common example of this is where the managing entities of construction sites require everyone on site, including contractors and their employees, to carry out routine PCR tests.

If your employer has brought a testing policy to meet client or other external demands, their actions are more likely to be considered reasonable.

Communicating your concerns