Maintaining a safe workplace supersedes an employee’s right to privacy, writes Gary Goodwin
Every breath you take and every move you make
Every bond you break, every step you take, I'll be watching you
Every single day and every word you say
Every game you play, every night you stay, I'll be watching you
- The Police, Every Breath you take
Now that the COVID-19 dust appears to be settling, the question then becomes how employers can open their offices. The virus can certainly resurge at any point in time and no one appears to be anxious to have a redo on the isolation most of us have undergone in the past few months. Of course, an employer has a workplace health and safety requirement to provide a safe work environment.
If an employee comes back into the workplace and unknowingly introduces the virus into the workplace, what sort of steps can an employer take to reduce the overall impact?
One good way to minimize risk will be through contact tracing. This process identifies, educates and monitors individuals who have had close contact with someone who carries the virus as these individuals face a higher risk of becoming infected themselves.
In Ontario, the COVID-19 Contact Tracing Initiative has started. If you have the virus, or have had contact with someone who has the virus, a provincial health officer would contact you to ensure you are following requirements, to check in about your symptoms, and to connect you with additional supports.
However, how do you determine what staff went in and out of the office and may have had contact with the potential carrier? You do not have to go through law school to know how faulty memories can be.
Companies could bring back the old stamping time clock method. I did this for a number of companies that I now look around and see no longer exist.
You might totally recall the tracking device that Arnold Schwarzenegger had to pull out of a nasal cavity back in one of his movies. A smaller and less painful approach involves radio frequency identification tags. The RFIDs are generally inserted into the meaty part of the hand between the thumb and forefinger. Kevin Warwick used the first wearable RFID back in 1998--- to open doors and turn on other technology. He used the RFID for several days and now it is in the London Science Museum. I inserted hundreds of tags into fish dorsal fins during my time in fisheries. But I digress.
An even better - being less invasive - approach is using a smart phone. Employers can purchase programs that can track an employee’s cell phone. The employee can then download the necessary app as required onto their phone.
Our company is just starting to use Simple In/Out. This downloadable app allows our company to track an employee as they enter and leave the building. Fortunately, the Orwellian aspect actually ends there. The app does not track your movements outside of the building or track exactly where you are inside of the building.
The administrator for the program uses GPS to draw a simple shape around a point to determine the extent of the virtual boundary, called a geofence. Part of the framework uses Bluetooth which is a low energy wireless transmission and easy on the phone battery. Crossing the geofence surrounding the building merely keeps track of when you enter and leave the building area. They might circle the nearest pizza joint, but that would be a bit invasive and unnecessary.
If the employer learns that an employee has the virus, then reports from the tracing program indicate who may have been in the building at the same time and potentially infected.
Authorities intend to develop further legalities surrounding geofencing. As you can imagine, geofencing has numerous applications beyond simply tracking employees and forms the basis for location-based advertising. Massachusetts just passed a law objecting to its use. The AG blocked an ad campaign set up by a Christian organization that set up a geofence surrounding women’s health clinics. The program would push out anti-abortion ads to those within the geofence area.
Canada has a number of privacy laws that apply to workplace monitoring and you have to determine what jurisdiction is governing your workplace. There is a common law right to privacy that protects ‘a biographical core’ of personal information that individuals would like to maintain. The Saskatchewan Court of Appeal suggests that information ‘tending to reveal intimate details of the lifestyle and personal choices of the individual’ falls within this. The biographical core description would likely not include a situation where an employer merely tracks when an employee crosses an ethereal type of fence.
Employers should establish reasonable grounds for the collection of the information. Contract tracing which helps protect employees would certainly fall within this category.
Employers should disclose monitoring activity. Once again, this is not an issue since employees must download and activate the app. This also covers the concept that if an employee downloads the app, he consents to the monitoring. A company needs to create a policy for program implementation and information use.
A question arises if an employee refuses to download or activate the program or simply refuses to charge up their phone. Again, better to get independent legal advice, but we could likely safely assume that the health and safety of staff are paramount, and an employer could initiate a progressive discipline action against the staff person that refused. The employer’s duty to maintain a safe workplace supersedes an employee’s right to privacy when simply accessing the workplace.
The new normal seemingly does not include overwhelming Orwellian overtones.
