The Ontario Government has previously announced what will be a three-step process to allow for the opening of businesses and services in the province. The first step was formalized on Thursday of this week. The remaining steps will not be subject to a definite timeline but are expected to await evidence of a decline in the number of newly reported cases. These details will follow.
As companies prepare to cautiously rejoice on the thought of opening the doors to business once again, issues will arise as to what safety precautions should be implemented by responsible management and how to do so in a jurisdiction in which personal rights and freedoms have often been protected in the past.
This raises the age-old question of how to balance employer, and indeed societal, need for workplace safety against individual human rights. One might expect in today’s environment a tie or near tie would yield to the need for overall protection of all.
The Ontario Human Rights Commission (OHRC) has stated its position on what steps an employer must take. Keep in mind that the OHRC is not a body that issues statements of law. It is in a position similar to that of the Canada Revenue Agency issuing its positions on tax issues. All this being said, it is a good bet that adhering to OHRC guidelines will not land the employer in a heap of legal trouble.
Temperature testing may or may not reveal whether a person has been infected with the coronavirus. However, given the absence presently of a conclusive and immediate testing device, employers now would very likely be within their rights, and indeed may arguably be mandated, to implement a system of regular temperature testing for employees entering the workplace premises and any visitors. Any person recording a temperature in excess of 38 degrees may be denied entry. This is in line with the position of the OHRC (paragraph 10).
The employee should be asked to consent to this temperature reading and also agree to regular random readings in the future. Should the person not agree, the employer may consider not allowing the employee access to the workplace. If this refusal is due to some other medical issue, then this should be revealed privately to the employer and consideration then be given to any accommodation issue. The employer should take advice as to whether such a refusal, where unrelated to a medical issue, will lead to termination or disciplinary action.
Which steps may be taken once a screening occurs is a different issue altogether. That is another topic, but the basic rule is that such medical data must be kept confidential. Further, any person testing positive must be accommodated to the point of undue hardship. The failure to do so, such as termination or other forms of adverse treatment, is simply unacceptable and will lead to an indefensible human rights claim.
Should the person display a high temperature, it is a fair request that they seek medical treatment and take steps to isolate pending the results of a test. This step is also consistent with the recommendations of the Government of Canada. Should the subsequent medical test show a positive marker of the coronavirus, then it is reasonable to mandate that the employee follow their medical advice, be that a period of quarantine or otherwise, as the case may be, and provide a medical clearance before returning to the workplace.
The Ontario Government prepared a very basic form of questions to allow people to conduct a self-assessment, as linked here. Many employers may be inclined to request a more substantive form of questionnaire raising queries such as the following:
- Have you or any member of your immediate household recorded positive for COVID-19 within the last two week period?
- Have you travelled outside of Canada within 30 days and have you remained in quarantine for 14 days following your arrival into Canada?
- Have you, or your spouse or partner, been in contact with any person now known by you to have tested positive for the coronavirus within the past 21 days?
- Do you agree to notify management if any member of your household tests positive for coronavirus during the period of your employment?
Arguably some of these queries may engage privacy concerns. The greater good is clearly the objective. It is expected that an employer will be given some leeway on actions they may take which are designed to protect the safety of all workers. However, it is always advisable to seek legal advice on such policies before they are implemented.
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We are sailing on uncharted waters. Employers will have one eye on the need to maintain a safe workplace and the other on privacy issues. Employees will have similar concerns. They will be seeking a safe workplace while balancing the desire to keep their private lives just that. The need to strike a fair balance is a difficult one. Keep in mind Ontario may clarify unsettled law at a moment’s notice. These are difficult moments for employers and employees alike. We remain by your side to provide real-time practical insight to the law and your position, whether you are an employer or employee.
For advice on this issue and all employment law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.
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