Canadian Employment Law Today

June 17, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Answer: As more employees are working re- motely due to the COVID-19 pandemic, there may be increased potential for bullying and harassment over social media, in settings that are difficult to monitor. Employers may be held liable for the bullying and harassment of employees by co-workers under human rights law and occupational health and safety law. Employers have obligations to prevent bully- ing and harassment under occupational health and safety law. This obligation may extend to conduct during working hours on personal so- cial media accounts, depending on the language of the applicable legislation. It is important to review the legislation because some jurisdictions have recently changed their harassment laws. In British Columbia, the Worker's Com- pensation Act requires employers to ensure the health and safety of their workers by tak- ing reasonable steps to prevent and minimize bullying and harassment. Under this legisla- tion, employers' obligations relating to bully- ing and harassment do not end when an em- ployee is not physically in the workplace and may extend to an employee's personal social media account. In A1800306 (Re), an employee alleged she was bullied and harassed by her co-workers both in the workplace and on social media, causing a compensable mental disorder. The B.C. Workers Compensation Appeal Tribunal (WCAT) held that for the bullying and harass- ment to give rise to a compensable injury, the behaviour needed to arise "out of and in the course of the worker's employment." The WCAT determined that the activities were not out of and in the course of her em- ployment because the activity occurred at a time and place that was inconsistent with the worker's employment. The social media posts were created after work hours when the em- ployees were not working at home, and they did not use work computers. In addition, al- though the employee was at work when she saw the post, social media at work was ex- pressly prohibited or discouraged. Viewing social media was not part of her job duties, nor was it reasonably incidental to her work obligations and expectations. However, the WCAT left open the possibil- ity that in other circumstances there may be a sufficient connection between social media posts created outside of working hours and the worker's employment. The WCAT distin- guished the circumstances from those consid- Answer: Employers may be considering new screening measures to ensure a safe work- ing environment during the COVID-19 pan- demic. These measures may include collecting employees' personal health information via questionnaires, temperature testing and/or self- disclosure of COVID-19 symptoms or potential exposures. Privacy laws continue to apply during the pandemic, and employers need to ensure they do not collect more employee health informa- tion than is permitted by law. Privacy laws gen- erally allow an employer to collect, use and/or disclose personal information if it is reasonably necessary to manage the employment relation- ship and identify safety risks in the workplace. The information employers may collect, use and/or disclose may vary depending on juris- diction, sector and the practical requirements of their workplace. In addition, most privacy legislation allows employers to collect, use and disclose personal information where it is required by law. In Brit- ish Columbia, employers may be required to provide information to WorkSafeBC about an employee who contracted COVID-19 due to a work-related exposure. During the pandemic, it may be reasonable and necessary for employers to request more employee health information than usual. The Office of the Privacy Commissioner of Canada has published "A Framework for the Govern- ment of Canada to Assess Privacy-Impactful Initiatives in Response to COVID-19," which outlines basic principles of privacy law and provides some key takeaways that are helpful to Canadian employers. Employers should iden- tify the legal authority for their collection, use and disclosure of personal information. This involves reviewing the applicable privacy legis- lation in your jurisdiction. The Framework also states that employers should only collect what is necessary and pro- portionate to their needs during this pandemic and ensure that information is only used or disclosed for the purpose for which it was col- lected. In practical terms, this means employers should operate on a need-to-know basis. For instance, you may need to know if an employee has travelled recently, but it is unlikely that you need to know for how long, why or where they travelled. Employers should consider the pur- pose for which they are collecting employee health information and disclose only what is necessary to achieve this goal both within and outside their organization. Additionally, em- ployers should consider how long they need to keep this information and whether it can be anonymized. What is reasonable to request will be differ- ent in every workplace. Consider, for example, the size of your workplace. It may be less reason- able for an employer with a small staff that is easy to monitor to request employee health in- formation to identify safety risks than it would be for an employer with a large unsupervised staff complement. There may be less of a need for information if the safety risks are lower, such as for employees who work outdoors, work alone or can easily socially distance. Employers should have policies in place that comply with occupational health and safety laws in their jurisdiction and inform employees of what personal information is being collected and for what purpose. From a legal point of view, these policies may help employers meet legal requirements to notify employees about the collection, use and/or disclosure of their personal health information and the purposes for which they are doing so. Employers should check the notice requirements in applicable privacy legislation in their jurisdiction and sec- tor to ensure they have met these duties. From a practical point of view, for policies to have a meaningful impact, employees must have read and understood them. These policies can pro- vide employees with confidence that their em- ployers are taking all necessary precautions to ensure a safe working environment and encour- age employees to support these efforts. 2 | June 17, 2020 June 17, 2020 Ask an Expert Have a question for our experts? Email jeffrey.smith@keymedia.com HARRIS AND COMPANY, VANCOUVER with Colin Gibson Privacy of employee health information during health crisis Question: Are there any exceptions to employee privacy rights in relation to their health information if it is related to a current health crisis such as the COVID-19 pandemic? Harassment on social media Question: How should an employer treat harassment between employees working remotely that takes place during working hours but on the employees' own social media accounts? Canadian HR Reporter, 2020 HARASSMENT on page 7 ยป

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