TESTING AND SCREENING EMPLOYEES FOR THE VIRUS TO PROTECT OTHERS - WHAT IS ALLOWED? WHAT ABOUT PRIVACY? WHAT CKL BUSINESSES AND EMPLOYEES NEED TO KNOW

While essential workplace employers have a statutory duty to take reasonable steps to protect the health and safety of employees, privacy laws still apply during the pandemic.

Privacy laws impact what employers are permitted to do in terms of screening and monitoring employees during the COVID-19 crisis.

Ontario’s Privacy Commissioner has not yet provided any guidance with respect to COVID-19 testing and screening by employers during the pandemic.

While the Privacy Commissioner has expressed that privacy laws continue to apply in these circumstances, it has also qualified that such laws are not meant to be applied as barriers during the course of public health emergencies.

In other words, privacy laws should not obfuscate employers taking reasonable precautions to ensure the health and safety of employees.

Can employees be asked if they have COVID-19 symptoms?

Employers should not employees if they have virus symptoms, if employees are not displaying symptoms.

Employers must have reasonable grounds to believe an employee is symptomatic and, if so, requesting information from the employee may be appropriate.

What is reasonable in the circumstances depends on the workplace – some workplaces inherently involved more risk, such as hospitals and long-term care facilities.

Employers should adopt an infectious disease or communicable illness policy requiring employees to proactively disclose if they have, or live with someone who has, COVID-19 symptoms.

Under the policy, an employee should be required to:

  • inform his or her employer of illness-related symptoms through a confidential process;
  • self-isolate at home;
  • follow the advice of the relevant public health agency on treatment and recovery; and
  • keep the employer updated regularly.

Can employees be required to provide a doctor's note?

Most physicians in Ontario are not able to test for COVID-19 currently. Testing has been an ongoing challenge throughout Ontario.

In addition, provincial and federal health directives discourage us from attending a physician’s office, meaning physical examination is unlikely and, therefore, the quality of any examination may be unsatisfactory.

While employers are generally entitled to request a physician’s certificate or note if an employee is absent from work, such as on sick leave, doing so due to COVID-19 is impracticable.

If an employee is a confirmed case, or has been symptomatic, a physician could potentially opine on whether the employee continues to be symptomatic, but not likely be able to verify whether the employee is infection free.

Accordingly, while the employer may be entitled to request a doctor’s statement, it is likely to have compromised value.

Can employees be required to be tested before going to work?

COVID-19 in testing in Ontario is not widely available – it must be directed by a healthcare authority. It cannot be obtained on request of any person. 

For most of us, obtaining a test absent a directive to do so is unlikely.

Therefore, employers are not entitled to require testing before employees attend their work generally.

There may be exceptions to this for higher-risk workplaces, such as hospitals and long-term care facilities.

Similarly, if the employer has reasonable grounds to believe infection is present, such as symptoms being displayed, employees may be rightfully requested to leave their workplace and contact the local health unit, or other health authority, to determine if assessment and testing should be undertaken.

Can employees’ temperatures be taken before allowing them to attend work? Is thermal testing allowed?

A primary symptom of the virus is an elevated body temperature of above 38˚C (100.4˚F).

Touchless temperature scanners are available to employers to use, but can they?

This issue is unclear and controversial, including because an employee may have a temperature without having the virus.

On the other hand, thermal testing is non-invasive, generates fairly objective and instant results and tests for one of the primary symptoms of COVID-19.

So, employers may consider using thermal testing, but not randomly in the workplace, but rather only if they have reasonable grounds for suspecting an employee may be symptomatic.

Ideally, an employee would consent to a temperature screen in the workplace, further minimizing the risk of liability for a privacy violation.

To utilize thermal screening effectively and to minimize risk of privacy violation, employers should consider:

  1. if possible, retaining a third party to conduct the thermal screening;
  2. ensure any other employee engaging in the screening is duly and properly trained and qualified to use the touchless temperature scanner and is knowledgeable about COVID-19 symptoms and what other factors may influence screening results;
  3. providing the tester with personal protective equipment, including: surgical (latex) gloves, face masks, a lab or disposable coat and alcohol-based hand sanitizer in all workplace areas where testing is undertaken;
  4. asking employees who attend work if they are displaying any flu-or-cold-like symptoms, such as coughing, breathing trouble, fever, pink eye, etc., or otherwise feeling ill for any reason;
  5. asking employees if they have had any contact within the past fourteen days with any other person who is a confirmed, or suspected, case of COVID-19;
  6. asking the consent of employees before undertaking the thermal testing – if there are reasonable grounds for suspecting an employee may be infected, but the employee refuses conduct, the employee may be asked not to attend the workplace due to the risk of potential contamination of others;
  7. conducting the testing in a private area, beyond the observation and earshot of others; and
  8. not collecting, recording, storing, using or disclosing for any reasons the information collected other than solely for determining whether the employee should be permitted to enter the workplace.

If an employee Employees thermal tests at at or above 38˚C (100.4˚F), or the employers “yes” to any of the screening questions, the employee should be advised to leave the workplace and stay at home, self-isolate, contact their physician or the local health unit for further assessment and next steps and leave home only for essential reasons.

Thermal testing and screening questions are reasonable methods to protect a workplace from a potential outbreak of COVID-19.

Provided that employees consent to being tested, the test results are not recorded, and the tests are conducted safely and privately, liability for potential violation of privacy should be minimized, if not eliminated entirely.

 If any testing or screening is conducted, how should that information be handled?

There is no decisive, clear statutory privacy-related laws in Ontario regarding implementing and conducting thermal testing in workplaces.

Therefore, employers must adhere to “best practices” to avoid potential privacy violations at common law.

If thermal testing is utilized, the personal information obtained from the employee through temperature screening should not be collected, recorded, stored, used or disclosed for any purpose other than solely determining whether the employee should be permitted to enter the workplace.

In addition, any personal information collected should be anonymized prior to recording, if recording is even required.

Any personal information collected should also be safeguarded against unauthorized use or disclosure.

The information collected should be limited as much as possible to fulfill the purpose of testing, and test records should not be collected, stored, used or disclosed for any purpose other than the screening context.

Ontario’s Human Rights Code Applies to all Workplace Screening and Testing:

Currently, Ontario’s Human Rights Commission indicates that medical assessments in the workplace to determine an employee’s ability and fitness to perform his or her employment duties may be permissible in these circumstances under Ontario’s Human Rights Code.

Despite this, personal information collected by medical tests may have an adverse impact on employees with other disabilities.

Therefore, employers should only obtain information from medical testing that is reasonably necessary in the circumstances to evaluate the employee’s fitness to perform on the job and any restrictions that may limit this ability, while excluding information that may identify a disability.

Based on this, touchless thermal scanning properly undertaken is unlikely to expose employers to tenable human rights and discrimination-related claims.


Thank you for reading this - Jason Ward of WARDS LAWYERS PC.

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This WARDS LAWYERS PC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca | www.wardlegal.ca