Employers must balance occupational health and safety with employee privacy
More than a year in, and despite increasing vaccination, the COVID-19 infection rate remains high in Canada. When workers clock in with the virus, employers need to know their obligations, both to those employees and to the rest of the workforce.
This question is currently among the top five inquiries Ryan Watkins is hearing from clients. Watkins, an employment lawyer, litigator and partner at Whitten and Lublin Employment Lawyers in Toronto, says that there have been “a lot” of transmissions in the workplace, especially in the manufacturing sector – where it is difficult to social distance – but also in healthcare, hospitals and long-term care homes.
A significant factor are low wages – employees in precarious, paycheque-to-paycheque situations typically do not have the option to forgo hours, so they end up coming to work and infecting others, he says.
Here are some things that employers should do if one or several of their employees get COVID-19.
“The first thing is – and it’s often overlooked – if an employee is coming to you, saying that they’ve got COVID, the first thing an employer should do is to thank them for informing them,” says Watkins.
Unfortunately, many employers fail to receive the news graciously, leading employees to worry about getting into trouble and withholding the information while coming to work infected, he says.
Employers can require employees to disclose if they have flu-like symptoms, according to a employer resource produced by Osler Hoskin & Harcourt LLP. But to comply with privacy laws, any requirement for the production of personal information must be “reasonable given the circumstances.” Having workers report COVID-like symptoms during a global COVID pandemic would be reasonable, but requests to disclose “further personal information unrelated to the employer’s legitimate interest in maintaining workplace safety” would not, said the resource.
While many workplaces have implemented temperature checks as screening mechanisms, the methods must be “the least intrusive” available, must be administered by “qualified individuals” in a safe manner, there must be advanced written notice, the employer may need to get medical advice and the records of employee temperatures should not be retained, said Osler’s resource.
When confronted with an infected employee, employers must balance occupational health and safety with the privacy of that employee, says Watkins. The employer must ensure that person does not report to work for at least two weeks. The employer also needs to perform contact tracing, and so should ascertain from the infected employee with whom they would have come into contact while infected. The employer should then inform those people that they may have come in contact with the virus and should get tested, he says.
Video surveillance, if available, can also be useful for contact tracing.
“An employer has an obligation to keep the workplace safe,” says Watkins. “So you absolutely should be telling other employees who may have come in contact with that person to get tested and to potentially self-isolate. As an employer, you have a duty to do that.”
SpringLaw PC employment lawyer Hilary Page writes in a firm blog that the employer may want to close-off the portion of the workplace and bathroom that the infected employee used and give it a good scrub to “thoroughly disinfect the area.”
During contact tracing, Watkins adds that it is important not to reveal the infected employee’s identity.
“You don't want to divulge more information than necessary,” he says. “… When you're telling other employees of an infected employee, you want to try to not use that person's name but talk about generalities – dates and times that the infected individual was around.”
“Try to maintain as much privacy as possible.”
While not an obligation, employers may consider providing the infected employee with mental health resources, given it may be a stressful time for them, says Watkins.
“You are going to want to check in on them. I think a good employer is one who has called them up, to see how they're doing,” he says. “But there's no obligation for the employer in that regard.”
Depending on the region, employers may be required to report infections to the public health authority. In Toronto, if five or more cases occur in one workplace, that workplace is required to shut down for 10 days, says Watkins. As of writing, three Amazon fulfillment centres in Peel region – northwest of Toronto – have been partially closed due to outbreaks.
In general, employees have the right to know about the hazards in their workplace and be trained on how to protect themselves from harm, as well as to refuse unsafe work, said Page. Under the Occupational Health and Safety Act, employers must ensure equipment, materials and protective devices are available and in good condition; provide information, instruction and supervision and take “every precaution reasonable in the circumstances” to protect workers, she said.
But the right to refuse unsafe work does not always include the right to refuse to work alongside someone with COVID, she said. Healthcare workers, police and those working in correctional institutions do not have the right to refuse “because their work is inherently dangerous or because it would be dangerous for them to refuse work.”
