If you continue to work in an “essential workplace”, as narrowed on April 2, 2020, your employer has a statutory duty to take reasonable steps to protect your health and safety, including during this pandemic.
To do so, an employer may wish to know personal information about you, particularly related to COVID-19. Those may relate to your health, whether you have had any symptoms or if you have had any health-related assessments.
Can my employer take my temperature? Make me provide a doctor’s note that I do not have the virus? Make me do a COVID-19 assessment?
All good questions.
While the times are entirely unprecedented, including legally, privacy law in Ontario and federally continues to apply, including for employment relationships.
So, what can employers lawfully ask? Do you have to provide the information to your employer?
Below is an excellent overview of the issue to answer all of your questions and address your concerns:
1. Can I ask employees if they have any COVID-19 symptoms?
From a privacy law perspective, asking employees if they have any COVID-19 symptoms should generally be avoided if they are not displaying any symptoms. If, however, an employer has reasonable grounds to suspect that an employee potentially has COVID-19, then asking the employee if they are exhibiting any symptoms of the illness may be reasonable and appropriate. Different rules may apply depending on the type of workplace (e.g. long-term care homes where the health and safety of others is at greater risk).
Employers may want to consider implementing a communicable illness policy that requires employees to disclose if they have, or live with someone who has, COVID-19 symptoms. Under this policy, an employee meeting that criteria should be expected to inform their employer of 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.
2. Can I ask employees to provide a medical note from their doctor?
An employer is legally entitled to request a doctor's note to justify sick leave (subject to statutory restrictions in some provinces), but because the average doctor's office is currently not equipped to test for COVID-19, a doctor's note may have little to no value at this time.
Similarly, for an employee who has already tested positive for COVID-19 or was previously symptomatic, a doctor's note could indicate if they are no longer experiencing symptoms, but not whether they are free of COVID-19. The doctor's opinion would also be based on limited information since individuals who have or recently had symptoms of COVID-19 are being advised not to attend their doctor's office, meaning that it is likely the employee would not have been physically examined.
3. Can I ask employees to get tested before reporting to work?
Employers generally cannot force employees to undergo testing, and COVID-19 testing is not available on demand. Different rules may apply for certain employers in the healthcare sector.
If an employer has reasonable grounds to suspect an employee potentially has COVID-19, the employer may ask the employee to leave work and request that the employee contact the relevant public health agency and follow their directions on whether testing is appropriate.
4. Can I take employees' temperatures (for purposes of determining if they have a fever) before allowing them to attend work?
Taking employees' temperatures may potentially be a breach of the privacy rights and dignity rights of workers under applicable human rights and privacy legislation.
However, occupational health and safety (OHS) laws are important public welfare legislation. In some cases, the OHS laws may have a superseding provision that allows protecting the lives, health, and safety of both workers and members of the public to prevail over the competing values of privacy rights and dignity rights of employees.
Taking employees' temperatures may also be permitted if there is a bona fide reason, such as a demonstrated outbreak of COVID-19 in the workplace or in the community immediately surrounding the workplace, or depending on the nature of the industry (for example – food production).
Legal advice should be sought regarding whether and how best to proceed with temperature screening. Notice should be given and the tests should be done in accordance with an established protocol in order to minimize the intrusion on employees' privacy rights as much as possible.
Credit:
Lorene A. Novakowski and Kristin Woo, Fasken, Apr. 3, 2020 – https://www.fasken.com/en/knowledge/2020/04/3-covid-19-employee-privacy-issues
