Prepared by Behnam Nadimfard, Legal Intern at Emerge Law
The following Q/A post answers some questions revolving around privacy laws and COVID-19 in the workplace. The post, by no means, answers all questions you may have, and we encourage you to contact us if you’d like to learn more.
Frequently Asked Questions
1- Are employers permitted to ask their workers whether they tested positive for COVID-19?
Employers may ask workers if they have tested positive for COVID-19 or have been exposed to other risk factors, like recent travel or close interaction with those who have tested positive for COVID-19. However, the employer should be mindful of the privacy and confidentiality obligations regarding employee health information.
2- What kind of information is allowed to be disclosed by the employers when there is a positive case of COVID-19 in the workplace?
If known to the employer, the degree and circumstances surrounding the potential exposure, and the date of the worker’s exposure may be revealed. However, the employer should refrain from disclosing the name, date of birth, or other personal identifiers of the worker who is suspected or confirmed to have contracted the COVID-19. The employer should provide sufficient, but restricted information to potentially exposed employees so they could adequately protect themselves, and prevent the spread of the virus within the workplace.
3- Are employers allowed to ask employees if they have demonstrated COVID-19 symptoms?
If an employee is not visibly showing any signs of contracting the virus, employers should generally avoid asking him/her about COVID-19 symptoms. That being said, if the employer has reasonable grounds to suspect that the employee may have COVID-19, it may be reasonable and appropriate to ask the employee if they have any symptoms of the illness. Employers may consider employing illness communication policies, where employees could inform the company whether they have tested positive for COVID-19 or live with someone who does.
4- Is it permissible for employers to ask their employees to get tested for COVID-19 before returning to work?
While different rules may apply to workers in the healthcare sector, employers generally may not force employees to test for COVID-19. If the employer has reasonable grounds to believe that the employee has possibly contracted the COVID-19, the employer could ask the individual to stop working and recommend contacting the relevant public health department to follow their guidance as to whether COVID-19 tests are necessary.
5- Is it permissible for employers to ask their employees to provide a doctor’s note for sick leaves in light of COVID-19?
Subject to some statutory restrictions in a few provinces, employers are lawfully enabled to ask their employees to justify their absence via a doctor’s note. However, in the current situation where an average doctor’s office lacks the appropriate equipment to test for COVID-19, asking for a doctor’s note bear minimal value.
6- Can employers take employees’ temperature before letting them attend to work?
While this approach should be handled with extreme caution and generally avoided, however, depending on the nature of the employer’s work, it may be reasonable for employers to take health testing measures such as temperature checks. Although such a method is consistent with the employer’s occupational health and safety commitments to take all reasonable precautions in the circumstances to protect the workers, employers bear some crucial obligations:
- Employers should describe how they will use and dispose of the test information and preserve the individual’s privacy as much as possible.
- Employers should clarify the rationale behind the need for a diagnostic examination under the circumstances and guarantee prior, informed consent.
- Employers should only obtain information from diagnostic examinations that are reasonably necessary to ensure the health and welfare of all workers while avoiding unnecessary details that could indicate a pre-existing disability.
- Only a qualified health professional may conduct a medical test.
7- What are some strategies to mitigate concerns over employees’ consent to the collection of their personal information?
The employer should take necessary steps to ensure the employees are informed that their personal information is being collected, the reason for the collection, and the possibility that this information may be used and disclosed by the employer. The mentioned information may be communicated to the employees via a dedicated screening policy or other means of communication before the screening/self-assessment. After receiving this information, the employee may explicitly consent through singing a consent form or implicitly consent through participating in temperature screening.
8- Are employers required to report a positive case of COVID-19 to the health authorities?
Subject to some exceptions, such as laboratory operators, school principals, and health professionals, most employers are not required by law to report a suspected COVID-19 case to health authorities. The requirement to disclose occupational illness to the Ministry of Labour is restricted to cases where workers have been subjected to disease in the workplace or when workers have applied for occupational illness with the Workplace Safety and Insurance Board.
9- Can employers require their employees to wear personal protective equipment (PPE)?
While the Ontario Human Rights Code does not prohibit any requirement for the health and safety of the workers during the pandemic, it does, however, protect the vulnerable population recognized by ground under the OHRC that may not be able to access such PPE. For example, the employer should note that wearing a mask may have negative impacts on people with disabilities. Under the OHRC, employers have a duty to accommodate these types of individuals to the point of undue hardship based on the cost or health and safety of other workers. Lastly, an inability to access or use a mask or other PPE, must not result in immediate adverse consequences such as employee discipline or termination.
10- Are employers allowed to restrict employee travel?
An employer can restrict an employee’s business-related travel. However, under limited circumstances, to restrict an employee’s leisure travel – something potentially possible but problematic – the employer should establish a legitimate reason for a restriction such as an adverse effect on business operations. Alternatively, the employer could share government travel health warnings with the employee and ask them to self-isolate for 14-days upon returning to Canada from a country abroad.
To explore further, please check out the following resources:
To learn more about employees’ rights and employers’ obligations for workers’ health and safety under the Occupational Health and Safety Act, click here.
To receive the latest updates about the developments in the Employment Standards Act in light of the COVID-19, click here.
To find sector-specific guidelines and resources to prevent COVID-19 in the workplace click here.
To access Toronto Public Health’s staff screening questionnaire, click here.
The content of this article is written for general information purposes only and does not constitute specific legal advice. This post should not be used as a substitute for competent legal advice from a licensed lawyer.