Ontario man successfully challenges employer's COVID-19 testing policy, claiming a violation of genetic testing labour law, securing a hearing that could establish case law and spark lawsuits

A Hamilton, Ontario man, Bernard Josipovic, a father and husband who worked for DHL Express Canada as a unionized employee, driving a 5-ton truck delivering packages, has taken the company to a federal labor board challenging the company's COVID-19 testing policy. Josipovic spoke with The Canadian Independent to tell his story.

DHL Express Canada, being federally regulated, operates under the federal governments Canada Labour Code. Industries like telecommunications, transportation, and banking, which fall under federal regulation, are subject to standardized employment conditions and practices enforced by the Canada Labour Code.

In 2022, DHL Express Canada introduced a COVID-19 testing policy at its Mount, Hope Ontario facility. The policy required employees who were not fully vaccinated to personally cover the expenses of undergoing a PCR or Rapid Antigen Test twice a week and provide proof of the test results.

Josipovic, who opted not to get vaccinated, expressed genuine concerns about the company's COVID-19 testing policy and communicated these concerns to his employer. His primary worry revolved around whether the PCR test qualified as a genetic test and, if so, whether DHL Express Canada was potentially violating the Canadian federal Labour Code.

The PCR test also known as a polymerase chain reaction test, is a test that is used to detect genetic material from a specific organism, such as a virus. PCR testing is done by a health care professional, or another trained individual, the test involves swabbing your nose or throat, and then the swab is sent to a lab for testing.

The National Institutes of Health (NIH) describes that a PCR test “is a laboratory technique that uses selective primers to copy specific segments of a DNA sequence” and the test uses “primers that match a segment of the virus’s genetic material.”

Canada’s federal labor law under section 247.98 (1), says a “genetic test, in relation to an employee, means 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.” Below that, under subsection (2), it says, “Every employee is entitled not to undergo or be required to undergo a genetic test.”

Under subsection (3) of that provision it explicitly states that no employer can "dismiss, suspend, lay off, or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee" because "the employee refused a request by the employer to undergo a genetic test" or because the "employee refused to disclose the results of a genetic test."

His second concern related to the Rapid Antigen Test (RAT), a take-home test suggested by public health officials for COVID-19 self-testing. The pamphlets inside these test kits explicitly state that the test is intended for "professional use only." The warning section in the pamphlets emphasizes that the instructions for performing the test "must be strictly followed by a trained healthcare professional to achieve accurate results.”

Josipovic explained his concerns, saying, "I am not a healthcare professional; I don’t want to injure myself using these so-called self-test kits. What if I put the swab too far up my nose and hurt myself? What if the buffer used in the kits poisons me? If these self-test kits are supposed to be handled by trained healthcare professionals, why are they allowing anyone to use them? There are so many instructions in the kit that it's easy for any average person who is not a trained professional to make a mistake, which could lead to an inaccurate reading. Some of the ingredients in these kits can be deadly."

One of the ingredients in the buffer used in these self-test kits is sodium azide, and according to the Centers for Disease Control and Prevention (CDC), "Sodium azide is a rapidly acting, potentially deadly chemical that exists as an odorless white solid," and "When it is mixed with water or an acid, sodium azide changes rapidly to a toxic gas with a pungent (sharp) odor."

Health Canada, in February 2022, issued a safety alert titled “Rapid antigen test kits and potential exposure to hazardous substances.” It stated that there was an “increase in reports to poison control centres” regarding the “accidental misuse or accidental ingestion or spillage of COVID-19 rapid antigen test kit solutions on the skin.” The alert emphasized that the “test kits include liquid solutions with chemical preservatives, such as sodium azide and Proclin, that may be poisonous if swallowed or absorbed through the skin.”

When Josipovic brought these concerns and questions to his employer, he say’s that he was "suspended for 1, 5, and 30 days without pay starting in May 2022 for failing to to provide COVID-19 testing,” and that they “continued to refuse to answer any questions and threatened me with termination if I came to work without a negative test after my 30 day suspension,”

In July 2022, Josipovic stated that he went on medical leave due to the mental stress caused by DHL, following consultation with his family doctor. On July 19th, 2022, he filed a genetic testing complaint with the Federal Labour Program. According to Josipovic, the Federal Labour Officer assigned to his complaint was unable to obtain any answers from DHL regarding his genetic testing complaint.

Having no other option, Josipovic moved his case forward to adjudication with the Canada Industrial Relations Board (CIRB). The Board accepted Josipovic’s case and informed both parties that they were scheduled to go to adjudication on February 1st, 2023.

On February 2nd, 2023, DHL Express Canada hired a private investigator to conduct surveillance on Josipovic. He felt that this action by DHL was taken to intimidate him. Josipovic obtained the private investigator report, which The Canadian Independent has reviewed. It includes pictures of his home, his personal vehicle and license plate, as well as several images of him working at another job he secured to help support his family while on medical stress leave from DHL.

Six days later, on February 8th, 2023, DHL Express Canada terminated Josipovic’s employment with the company, alleging that he falsified medical documents related to his medical leave. Josipovic acknowledges that he was physically capable of working and, in fact, he secured another job to support his family while on medical leave, which he say’s he also notified DHL about prior to his termination.

He explains that his medical leave stemmed from the mental strain induced by DHL, emphasizing that it wasn't due to any physical medical issues but rather a mental health issue.

Josipovic insists that every three months while on unpaid medical leave, he provided DHL with medical documentation from his family doctor, confirming his physical ability to work but noting his ongoing mental health issue. He say’s that DHL's reason for firing him was complete fraud.

According to Josipovic, they used the private investigator’s photos of him working to create the false impression that he was deceiving the company and physically capable of working. He say’s he believes that DHL falsely portrayed his medical leave as being for a physical reason, whereas it was, in fact, for a mental health reason.

In September 2023, the Board convened with all parties and informed them of the decision to proceed with an in-person hearing in Toronto, Ontario. The board scheduled hearing dates in February and March of 2024.

At the February 15, 2024, hearing, Josipovic, who represented himself, said DHL hired four lawyers to attend the hearing. He mentioned that DHL's legal team attempted to have the case dismissed based on their expert reports. Josipovic argued why the case shouldn't be tossed and provided expert testimony of his own.

The 3 panel Board took a 15 minute recess and came back letting the parties know that the case was not going to be dismissed and that the hearing would proceed. 

The next hearing date with the Board is scheduled for March 21, 2024. Josipovic is still in a dispute with his union, Unifor, which he claims has been unhelpful in advancing the arbitration process to address his grievances and reinstate his job or reach a settlement agreement. He mentioned that he loved his job at DHL, had been employed there for years, and had built up seniority.

Bernard has a "Buy Me a Coffee" account where you can make small donations to support him with the various costs he has incurred. You can donate at the link below.

https://www.buymeacoffee.com/bernardjosi

The Canadian Independent will continue to monitor this story and provide updates on any developments along the way.