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2020.11.25

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THE EMPLOYERS' EDGE

Information Overload! How Should Employers Handle Medical Information in a Pandemic?

Practice Areas: Privacy

I am writing this blog on November 25, 2020.  Christmas is one month away.  Access to an effective COVID-19 vaccine is … well certainly more than a month away.  Exactly two months ago, the Ontario government introduced legislation requiring employers to conduct mandatory daily screening for COVID-19 related symptoms.  This screening largely takes the form of a daily questionnaire for workers, but news from the Premier at yesterday’s press conference included that 1.3 million rapid COVID-19 tests were going to be rolled out to certain Ontario workplaces.

This is welcome news for many Ontarians.  Early and reliable detection, and appropriate isolation, for people with COVID-19 is necessary to try to quell the spread of the infectious virus and help Ontario to “flatten the curve”.  The Institute for Work & Health has reported that one in every five COVID-19 infections among working-age adults can be attributed to workplace transmission.  And back in the summer, a survey of 1,511 Canadians showed that 69% would feel more comfortable being back at work if the employer implemented a system to monitor the body temperatures of everybody entering the workplace.

But what should employers know about screening employees with the use of on-site testing?  There are a number of privacy and human rights related factors to consider.

Popular types of daily employee screening include the above-mentioned questionnaires and other forms of self-reporting.  However, other employers have in fact opted to implement daily temperature checks of employees to detect fever, a common symptom of COVID-19, and rapid tests are soon going to be a reality for some workplaces.  The bottom line is that employers always need to ensure that all medical information is handled in a responsible and discrete manner.  Consider the following tips:

  1. Medical information should always be collected in a discrete manner. Temperature checks and rapid testing should be conducted privately, so that results are not disclosed to other personnel and employees.
  2. Medical information should always be stored in a discrete manner. There is no point in collecting data and screening employees if you don’t retain information, but all employers should ensure that retention is done securely to respect all workers’ privacy. Consider using password protected electronic documents or a locked cabinet for physical files.
  3. Only collect and store what information is needed. If you are screening for COVID-19 related symptoms, all you need to know is whether a particular employee presented a particular system on a particular date. In the current climate, an employer may require an employee to disclose whether they have tested positive for COVID-19, but if the employee did not have a positive test result, it would not be appropriate or necessary to ask for a diagnosis to explain the symptom presented.
  4. Only disclose what information is needed to the workers who need to be informed. Employers have the unenviable task of complying with human rights and privacy laws, but also workplace health and safety legislation. In Ontario, the Occupational Health and Safety Act requires employers to take all reasonable steps to prevent workplace hazards. This is not an easy balancing act. If an employee discloses a positive COVID-19 test or that they have been in close contact with a COVID-19 positive person, the OHSA requires some disclosure to other employees about the potential for exposure at work. But employers should only disclose what information is absolutely necessary, and only to the people that need to be informed. Those workers who could have come into contact with the worker ought to be advised that they may have been exposed, and if possible when and where, but it is not necessary to tell the entire workplace that a particular worker has tested positive.

There is no doubt that employers will continue to face challenges with managing a workplace during the COVID-19 pandemic.  Workplace screening and testing only raises more issues.  Fortunately, we are able to draw upon basic principles of human rights and privacy rights to try to find a reasonable balance with the Employers’ duty to maintain a safe and healthy workplace.

Be sure to visit our Employers’ Edge blog for updates on all areas of workplace law, including handling medical information.  Or, get familiar with the Lawyers for Employers broadcasts (available as free webinars or podcasts for download).  Better yet, if you have questions, we have answers.  Contact any of the team at CCPartners for advice on how to protect your workplace while protecting yourself.

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