As many workplaces look to return employees from working remotely, employers will be anxious to implement a safety program, including testing policies, to ensure the ongoing health of both employees and visitors. However, employers will have to strike a balance between safety and human rights provisions. Below, we review some potential steps employers may take and how those steps are viewed by the Ontario Human Rights Commission (OHRC).

Temperature Testing

It would appear that mandatory temperature monitoring would be consistent with the employer’s obligation to ensure a safe work premises in accordance with occupational health and safety requirements. This is particularly so in industries in which the employees cannot implement social distancing due to the context of the work environment.

This will not, of course, reveal the presence of the virus in asymptomatic carriers, barring the introduction of more complex tests in the near future.

OHRC View on Testing

The Human Rights Commission is not an institution that issues statements of law. It gives its views, which are certainly worthy of note, but these are not affirmative law.

This being said, the OHRC has these comments on employer testing. The full statement can be viewed here at paragraph 11.

1. Medical testing may be permissible where the testing is shown to be effective and necessary in circumstances such as a pandemic.
2. The nature of the testing should be reasonably necessary to protect health and safety of the workers.
3. The testing should exclude any information which would be related to a pre-existing medical disability.
4. Only a qualified person should administer the tests.
5. The results, where positive, should not result in disciplinary action.
6. The employer should make known the reason for the testing and “ensure” a prior and informed consent.
7. Management should use the least intrusive form of testing.

One would expect a simple temperature check would not require a physician to administer, notwithstanding point 4 above. As the testing system becomes more detailed and is not limited to a temperature test, this may require more attention.

Point 6 implies that the employee must affirmatively consent to the administration of the test. This, indeed, may be so from a privacy perspective, but very likely the employer will be permitted to refuse access to the work premises, absent unusual circumstances, in this context.

Positive Test Results

Such a result will very likely allow the company to bar the employee from access to the workplace. If the person had prior access to the work premises, any employees who came into close contact with the infected person should also be removed from the workplace and required to quarantine for 14 days. All necessary steps should be taken to protect the identity of such persons.

View of OHRC

The position statement is that refusing an employee access to the workplace should be “reasonable and consistent” with information from medical and Public Health officials. This would appear to be consistent with the above.

Contact with Known Carrier

An employee reports to management that they have been in close contact with an infected person. What actions should the company take? Very likely, the employer would be permitted to refuse the employee access to the workplace and require them to quarantine for 14 days. The same direction would apply to co-workers who had been in close contact with this person.

View of OHRC

The Commission has not stated a specific stance on this issue but presumably, it would be the same as the above, that is, that the actions must be “reasonable and consistent” with information from medical and Public Health officials.

This may not be an exact fit for an inferred medical issue as the person may well be not infected at all. The employer does, nonetheless, have an obligation to ensure a safe workplace, which would very likely trump any uncertainty.

Masks at Work

Ontario does not mandate the wearing of masks in non-public facing workplaces. The view of health authorities is that a non-medical mask is not shown to offer protection to the person behind the mask, but is a further measure that can be taken to protect others in the immediate vicinity. It is likely within the employer’s discretion to direct that masks be worn in the work premises.

Views of OHRC

The OHRC has not issued an opinion on this matter, but a cautionary qualifier is offered to take care with persons with medical issues such as respiratory concerns that may make breathing difficult in this context. This will require fair accommodation of the needs of such a person.

Get Advice and Know Your Rights

Return to work issues presents the need to balance the protection of a team in general against the individual rights of privacy and accommodation. This is an age-old issue but one which takes on serious ramifications in today’s pandemic crisis. Stay current and be aware of your rights and obligations. The law is clearly an evolving instrument. It is important to stay up to date and aware of your obligations and rights, as the case may be.

We remain by your side to provide real-time practical insight into the law and your position. 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.