Screening for COVID-19 In the Workplace: A Guide for Employers
The COVID-19 pandemic has raised new issues for employers to manage. While many employers transitioned to operating remotely, some employers, due to the nature of their business, cannot do so. The contagiousness of the virus raises the question about whether employers can screen employees for COVID-19 prior to entering the workplace.
At issue is: how can employers balance screening employees for COVID-19 without violating employee privacy and human rights?
According to the Public Health Agency of Canada, employers are permitted to ask their employees screening questions to determine whether they are at risk for carrying COVID-19. For example, questions an employer can ask employees include whether they:
exhibited any symptoms
come into contact with anyone who has exhibited symptoms
travelled to an infected area
been in contact with anyone who has travelled to an infected area
If an employee answers positively to any of these questions, the employers can require the employee to self-quarantine for 14 days.
Employers, however, must ask these questions indiscriminately. They should not target employees on the basis of their ethnicity or any disability, which are prohibited grounds of discrimination under human rights laws.
Balancing Workplace Health and Safety vs. Employee Privacy Rights
The issue of screening employees in the workplace has largely been dealt with in the context of determining whether employees are under the influence of alcohol or drugs at work. Canadian case law suggests that random drug and alcohol testing is not automatic; however it was permitted in the following circumstances:
No employee can be subjected to random, unannounced alcohol or drug testing, save as part of an agreed rehabilitative program.
An employer may require alcohol or drug testing of an individual where the facts give the employer reasonable case to do so.
It is within the prerogatives of management’s rights under a collective agreement to require drug or alcohol testing after a incident where it was important to identify the root of the cause.
Drug and alcohol testing was permitted for individuals found to had a problem with alcohol or drug use.
In these scenarios, case law has adopted a “balancing of interests” approach, which allows the development of a pragmatic response to policies that are reasonably necessary to maintain workplace health and safety.
When considering these principles in the context of COVID-19, a strong argument can be made that the balance of promoting a safe workplace by subjecting employees to some kind of testing for COVID-19 outweighs employee’s privacy rights. This is particularly the case considering that it is a global pandemic, which has been declared an “emergency” by various governments. With this in mind, there are some practical considerations that inform what is reasonable as well.
Employers may wish to adopt less invasive screening procedures to test for symptoms of the virus, such as taking employees’ temperatures. Then, if an employee appears to be someone who should be tested, this can be referred to competent medical personnel.
As a starting point, it is unclear what particular “test” employers could use given the current shortage of COVID-19 testing kits. Moreover, the World Health Organization has stated that temperature screening alone is not sufficient to detect whether someone has the virus, and this should be practiced with other protocols. A further consideration is the prospect that employees be screened prior to every shift, as it is possible for the employee to contract the virus after finishing work the day before. Asking the questions outlined by the Public Health Agency of Canada is the most practical way to screen employees for COVID-19 at the workplace. These questions are less invasive and seem like the best balance of practical screening measures against employees’ right to privacy.
Takeaways for Employers
All employers who are either operating or planning to resume operations should consider the following measures to address the health and safety issues relevant with COVID-19:
1. Have a system for asking employees questions recommended by the Public Health Agency of Canada in determining whether they are at risk for COVID-19.
2. Encourage employees to self-isolate if they exhibit symptoms of COVID-19 or are generally feeling unwell.
3. Prepare a plan to help support those who are at risk and are required to self-isolate.
4. Promote, encourage and supervise sanitary practices in the workplace.
For further information, please contact:
George Waggott at 416-477-6894 or by email at firstname.lastname@example.org
Evan Presvelos at 416-508-4589 or by email at email@example.com