The Ontario provincial government recently announced that it is relaxing the regulations around the use of COVID-19 rapid antigen tests ("RATs") to make it easier for businesses to test for COVID-19 in the workplace. Employees who want to self-swab for a rapid antigen point-of-care test in the workplace offered by their employer will now be able to do so.
Ontario initially launched the Provincial Antigen Screening Program as a pilot in November 2020 to deploy RATs to essential workplaces and sectors and to quickly identify and help stop the spread of COVID-19. Now the province has expanded rapid testing and made it easier to administer in the workplace. The Laboratory and Specimen Collection Centre Licensing Act, R.S.O. 1990, c. L.1, and its Laboratories Regulations, R.R.O. 1990, Reg. 68, have been amended to exempt "COVID-19 point-of-care testing," like RATs, from the habitual regulatory requirements for the collection and testing of specimens taken from the human body.
As a result of these statutory changes, there are fewer limitations on employers wanting to implement such testing measures in the workplace. RATs do not require administration by a health-care professional, can be administered at virtually any location or workplace, and will typically provide an immediate test result within 15 to 20 minutes.
While RATs will likely assist employers to ensure the health and safety of their workplace pursuant to occupational health and safety obligations, RATs are a screening tool only. RATs are not a diagnostic tool for COVID-19 infection in symptomatic individuals or individuals with known contact with a positive COVID-19 case. Therefore, current workplace screening protocols need to remain in place.
Health Canada has suggested that RATs are useful for monitoring asymptomatic people in high-risk settings, repeated testing of workers in remote work areas to prevent the introduction or minimize the spread of infection, repeated testing of inmates and workers in correctional facilities, and regular testing of workers in high-risk settings such as long-term care facilities, construction sites, educational facilities and large food processing facilities.
A positive RAT result will require a follow-up polymerase chain reaction (nasopharyngeal swab) test.
There are a number of important legal issues that can arise from the use of RATs. Employers who are considering implementing RATs as part of their workplace screening protocols, should review provincial guidance and ensure that supervising staff have followed the Ontario Ministry of Health's training.
The use of RATs should be conducted on a voluntary basis and the personal health information obtained through RATs should not be collected, recorded, stored, used or disclosed without the employee's consent, except as required by the Health Protection and Promotion Act, R.S.O. 1990, c. H.7. Employers should also consider a number of practical points such as who will supervise the administration of RATs in their workplace, how the employee's personal health information will be secured, and whether there is clear employer guidance on the use of tests and test results as part of their screening protocol.
André Poulin-Denis is an attorney with Gowling WLG in Ottawa, Ontario. © 2021 Gowling WLG. All rights reserved. Reposted with permission of Lexology.