Canadian Employment Law Today

Cases and Trends Cases and Trends Canadian HR Reporter, 2020 6 | | June 17, 2020 June 17, 2020 minants of the scope of what is reasonable in the circumstances. Accordingly, the following precautions seem sensible: • Structural changes, like modifying entrances and installing plexiglass barriers. • Staggering start times. • Communicating physical distancing guide- lines. • Regularly disinfecting machinery, tools and "high-touch" areas. • Making personal protective equipment and hygiene products available. • Eliminating tool sharing. • Facilitating carpools to avoid public transit commuting. Additional precautions will depend on the unique characteristics of the workplace. Success- ful implementation will depend on clear com- munication, training and enforcement. Are these guidelines enough? The core symptoms of the disease mimic the symptoms of the flu or the common cold. Worse, many carriers of the virus are asymptomatic and may be fuelling the spread. This underscores the need for rigour and discipline in implement- ing physical distancing, hygiene and sanitation practices within the workplace. On the other hand, given how insidiously the disease seems to spread, should we do more than just implement reasonable precautions? Enhanced measures could include any one or combination of the following: • Contactless temperature screening. • Mandatory disclosure of self-assessments. • Contact tracing. • Mandatory testing. • When feasible, mandatory vaccinations. Privacy considerations Enhanced screening, tracking and mandatory medical examinations raise important questions about constitutional rights, privacy interests and statutory human rights. Ostensibly, our govern- ment has the authority to pass legislation requir- ing these measures. However, in the absence of statutory authority, non-unionized employers looking to adopt these solutions must contend, potentially, with privacy legislation, common law privacy protections and human rights laws. Unionized employers face an additional signifi- cant layer of restriction. Arbitrators have long rec- ognized workplace privacy, requiring employers to justify the need for policies that invade the pri- vacy of their union member employees. In terms of privacy legislation, some provinces have privacy legislation that applies to the em- ployment relationship; other provinces, includ- ing Ontario, have none. In recent years, our courts have recognized common law rights over privacy. In 2012, an On- tario judge in Jones v. Tsige recognized a cause of action for "intrusion upon seclusion." Damages may be awarded for the tort in the context of an invasion of privacy that is intentional, without justification and highly offensive. Human rights legislation can also help em- ployees to safeguard their privacy. In 2000, the Ontario Court of Appeal in En- trop v. Imperial Oil Limited held that random drug testing of healthy persons under the guise of workplace safety was a violation of the Ontario Human Rights Code. The policy was prima facie discriminatory because it created the perception that employees who refused the test or tested positive were disabled. The policy may have been justified nonetheless if it discriminated minimal- ly, but it did not because drug tests involving oral swabs are highly invasive and unable to reveal if someone was impaired at the time of the test. Coronavirus testing may not suffer from the same problem. Although highly invasive, coro- navirus tests are apparently able to identify the presence of a transmissible virus at the time of testing. Context is also important given that we are dealing with a pandemic. The underlying principles grounding privacy rights are consent, justification, reasonableness and proportionality. Employee consent is a complete defence to any claim over a breach of privacy. To achieve consent, employers must communicate clearly and frequently and have a strong relationship of trust with employees. Absent consent, the legal barriers for employ- ers (particularly non-unionized employers) do not appear particularly prohibitive. Whether the law relates to privacy legislation, the common law or human rights, employers must demon- strate reasonable justification and minimal im- pairment. Pandemic may change standards Given the unprecedented nature of this health crisis, justification for enhanced screening mea- sures may be easily achieved. However, it will be important for employers not to overreach. Mea- sures should be time limited and implemented professionally with discretion. An employer who wishes to implement tem- perature screens and self-assessment question- naires would be well advised to communicate the need for such measures and the steps the employer will take to safeguard the employee's health data. These steps could include utilizing a third-party health provider to administer the screening. Assurances that data will not be stored any longer than necessary and accessed only by limited individuals will also be important. At the other extreme, mandatory testing and vaccinations (when feasible) represent more seri- ous encroachments into an employee's sphere of privacy. Labour arbitrators and courts have con- sistently held that the imposition of mandatory medical treatments (including the flu vaccine), in the absence of consent or legislative authority, constitutes a battery. Based on Ontario Premier Doug Ford's recent announcement of his inten- tion to test a large number of employees across a variety of industries, that legislative authority appears imminent in that province. In the middle of the enhanced screening con- tinuum is contact tracing, which involves deter- mining if an individual has come within six feet of an infected person, followed by steps to ensure that the person is isolated to break the chain of transmission. The concept isn't novel. It was used to resolve previous pandemics, like syphilis in the 1930s and Ebola in 2014 in West Africa. Individuals employed as "contact tracers" call infected per- sons to determine who they may have been in contact with. Smartphones offer a unique opportunity to augment the process. Utilizing the Bluetooth technology built into smartphones, Apple and Google are developing further technology to al- low users to determine if they have come into contact with an infected person. An intriguing application of the contact trac- ing capabilities of smartphones and other tech- nology is the workplace. PwC Canada, for exam- ple, is testing an application called "Check-In" that will permit its clients who purchase the ap- plication to monitor employee activity, includ- ing the details of whom they come into contact with. In the event of a positive diagnosis, the stored data would help facilitate isolation. The details on PwC's website appear to emphasize privacy protection. If deployed in Canada, PwC's application ought not to attract employee privacy issues, pro- vided informed consent has been obtained and considerable care has been taken to preserve the confidentiality of data. A more interesting and controversial issue will be the implications of maintaining the application as a permanent fea- ture of the employment relationship. As we con- tinue to grapple with the coronavirus, we may indeed witness an evolution of Canadian privacy law, particularly as it relates to the workplace. For more information, see: • Jones v. Tsige, 2012 ONCA 32 (Ont. C.A.). • Entrop v. Imperial Oil Limited, 2000 CanLII 16800 (Ont. C.A.). Rishi Bandhu is an employment lawyer in Oakville, Ont. He can be reached at (905) 849-0025 or rishi@blpc.ca. « from COVID-19 on page 1 Pandemic may justify enhanced screening measures

• Cover