‍Written by Paralegal Samina Sial and Employment and Labour Lawyer Antonio F. Urdaneta  

Businesses may be struggling with managing workers’ expectations. Some of them may not feel comfortable with giving employers medical, family and travel information. Businesses may argue that they need this information to fulfill their obligation under health and safety laws.  

Under Ontario’s Occupational Health and Safety Act (“OHSA”), employers have a legal obligation to ensure that they take every reasonable precaution necessary in the circumstances to protect workers. This means that employers should take reasonable measures to prevent, among other hazards, the spread of diseases, like COVID-19.

Even though employers have legal obligations to take precautions, they should not explore an employee’s private life outside of work, unless an event is connected somehow with work or impacts the business’reputation. Neither should an employer ask for an employee’s medical information, unless the information is necessary to provide accommodation under human rights laws, which is usually limited to work restrictions and reassessment dates. More specifically, under normal circumstances, medical diagnosis from an employee is not allowed, but due to unprecedented times because of the pandemic it may be considered necessary to obtain confirmation from an employee of a negative COVID-19 test result before an employee can resume work.

Reasonable Precautions and Privacy      

Generally,an employer cannot order employees to take a medical test and it has less discretion to conduct random tests, such as temperature checks. Putting testing aside, if an employer has information that suggests an employee has been confirmed to have contracted COVID-19, it may be a reasonable precaution to request evidence that the employee is no longer contagious and is safe to return to work.  

An employer may also ask an employee to self-isolate for fourteen days by staying home if they have COVID-19-like symptoms, disclose if they have tested positive for COVID-19 or have been exposed to someone who has been tested positive for COVID-19. However, if an employee can continue to work from home and the employee is well enough to do so, it would be wise to allow the employee to work remotely while self-isolating.

Employers can request employees not to travel for personal reasons, particularly to high-risk countries identified by public health authorities, but they cannot block an employee from traveling for personal reasons. However, an employer can prohibit an employee to make non-essential business travel. Employers should make their employees aware of the consequences of travelling abroad and that he or she will be required to self-isolate upon their return to Canada as instructed by public health officials, before resuming local activities or returning to work.

Usually,the questions below would not be necessary for an employer to take steps to protect the workplace against health and safety hazards:

·        Are you COVID-19 positive?

·        Did you travel recently?

·        Did you have contact with or cared for someone diagnosed with COVID-19 within the last 14 days?

It is too early to predict how administrative decision makers and courts would treat an employer who pushes an employee to provide medical information related to COVID-19 in order to prevent transmission of the infection in the workplace.  However,based on past precedents health and safety has always taken precedence over privacy.

Work Refusals

To add insult to injury, workers who willingly give employers their medical information may refuse to work arguing that the working conditions endangers them, when co-workers decide not to disclose COVID-19 related medical information. And what can you do? Accept non-disclosing workers to return to work? Be flexible with work refusals at the discretion of employees?  

The employer must conduct an internal investigation, typically in the presence of the worker who refused, and its health and safety representative or its Joint Health and Safety Committee. The persons conducting the investigation should record the circumstances of the refusal and the investigation process and take any necessary action to remove the danger and ensure it is safe for the employee to perform their work.

If a worker continues to refuse to work, the Ministry of Labour (“MoL”) must be notified to visit the workplace and inspect the circumstances around the work refusal. If an inspector does not find justification for the work refusal under the statutory threshold, the refusing worker will be expected to return to work. If the inspector finds otherwise, then the inspector will order for corrective action to be taken.

Potential solutions

The best way to deal with this balancing task is to follow the recommendations given by Public Health Agencies and the Ministry of Labour.  

At a minimum, employers should have policies outlining the purpose of collection, storage, access and use of any private and confidential information, compliant with privacy legislation.

Employers should clearly communicate expectations with their employees. Employers can expect employees to inform the company if they have COVID-19-like symptoms, have been tested for COVID-19, or have been in close contact with anyone who has been tested positive for COVID-19. And that the employee will comply with self-isolation to prevent the spread of COVID-19.  

At a minimum, employers must educate employees about their health and safety policy, which should include infectious diseases. This way,employees know what to do to prevent transmission of the virus. This may mean that employees are required to follow procedures for physical distancing, wear personal protective equipment, or even perform work differently using technology.

More importantly, a well-written and well-communicated policy,aligned with public health officials and ministry of labour’s recommendations can reduce an employer’s liability, and contributes with healthier and safer workplaces and culture, increased employees’ morale and an engaged workforce.