Requirements mandated by law or any official guidance.
Governments across Canada have provided directives and measures to combat the spread and effects of COVID-19. These measures include the provision of new leaves of absence, financial support for employers and employees, and the mandatory closure of businesses that have been deemed to be “non-essential”. The Government of Canada has also placed restrictions on travel outside Canada and the government is advising Canadians to avoid all non-essential travel. For those individuals who return or enter Canada, the government is imposing a mandatory isolation or quarantine. The mandatory quarantine will require people entering Canada to isolate for 14 days, whether they are symptomatic or not.
The federal and provincial governments have also released guidelines for workplaces to prevent the spread of COVID-19 and ensure that employees are not exposed to conditions that could be harmful to their health and safety. Each workplace must consider specific controls to keep employees safe from contracting or spreading COVID-19 in the workplace. Guidelines issued by governments include the following measures: physical distancing measures in the workplace; reorganization of workspaces; increased worker and workplace hygiene; and discouraging people who are ill from entering the workplace.
The table below provides links to government guidelines on health and safety practices in the workplace to combat the spread of COVID-19
See section 3 on “state aid” for sweeping socio-economic policy amendments.
Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.
Physical Distancing and Workplace Modifications
Employers should promote physical distancing (keeping a distance of 2 metres from others). Physical distancing measures can be achieved by limiting the number of employees in the workplace and if possible enabling telework; avoiding multi-person meetings, limiting physical contact, and minimizing interpersonal interactions in the workplace; encouraging unidirectional travel in hallways or aisles; where possible adopting contactless business models; installing physical barriers between employees and clients (e.g. plexiglass windows or cubicle partitions).
Discouraging people who are ill from entering the workplace. Employers should prevent symptomatic employees from attending at the workplace by providing written policies and procedures that employees must follow when they are sick, or have come into contact with someone diagnosed with COVID-19. Where it is feasible, employers should consider asking clients if they are ill or have symptoms of COVID-19 before they enter the workplace.
Workplace Hygiene and Cleaning Measures
Employers should promote good hygiene by encouraging regular and thorough handwashing. Workplaces should have access to soap and water or alcohol-based sanitizer, hand sanitizer stations should be placed in prominent places around the workplace, and high-touch surfaces should be frequently cleaned and wiped down. Examples of high-touch surfaces include doors handles, faucet handles, keyboards, and shared equipment. Clients who visit the workplace should also be encouraged to maintain proper sanitation practices. Where possible, employers must try and increase ventilation in closed spaces by opening windows or moving work outside.
Personal Protective Equipment
The use of personal protective equipment (PPE) is based on risk assessments of specific work environments and the risk of exposure to infection. For workplaces with occupational health and safety committees, employers should involve the health and safety committee when making these assessments. Where hazards related to COVID-19 cannot be eliminated through physical distancing and other hygiene measures, employers may consider the use of PPE in the workplace. If PPE is recommended, employees should be trained on the proper use of PPE.
Contact Tracing Tools
Contact tracing tools are being suggested as an effective way to combat the spread of COVID-19. In a recent statement, the Canadian Privacy Commissioners emphasized that while privacy laws are not a barrier to implementing effective pandemic responses, compliance with privacy legislation remains mandatory.
More recently, Canada’s Privacy Commissioners released a Joint Commissioners’ statement on Contact Tracing. With respect to implementing Contact Tracing, the joint statement recommends adherence to the following principles:
- Consent and Trust. The use of apps must be voluntary. This will be indispensable to building public trust.
- Legal authority. The proposed measures must have a clear legal basis and consent must be meaningful. Personal information should not be accessible or compellable by service providers or other organizations.
- Necessity and proportionality. Measures must be necessary and proportionate and, therefore, be science-based, necessary for a specific purpose, tailored to that purpose and likely to be effective.
- Purpose limitation. Personal information must be used for its intended health purpose, and for no other purpose.
- De-identification. De-identified or aggregate data should be used whenever possible, unless it will not achieve the defined purpose. Consideration should be given to the risk of re-identification, which can be heightened in the case of location data.
- Time-limitation. Exceptional measures should be time-limited: any personal information collected during this period should be destroyed when the crisis ends, and the application decommissioned.
Accountability and safeguards. Employers must ensure they have safeguards in place to protect personal information during the COVID-19 pandemic. Appropriate legal and technical security safeguards, including strong contractual measures with developers, must be put in place to ensure that any non-authorized parties do not access data and not to be used for any purpose other than its intended
On balance, an employer in Canada may screen employees’ temperatures during the pandemic for the purpose of providing a safer workplace for all employees. However, the screening must be conducted in a manner that respects employees’ privacy and human rights. Below are a number of factors employers should consider before implementing temperature screening.
- What will you use to take the temperature? The device should be as accurate as possible. It should be able to screen employees quickly and be non-invasive. If possible, it should not require an employee to get close to other employees to take their temperatures. Generally, employers are using thermal forehead testing because it is fast and non-invasive.
- Where will temperatures be measured? If it is done at the door and there is only one door, it will likely cause a bottleneck, which may increase the risk of exposure to the virus. The screening area should be private, if possible.
- Some employers are providing employees with thermometers and asking them to take their temperature at home. If their temperature is above 37.8 C (or as recommended by Public Health), employees should be advised (i.e. through a policy) to call in sick or work from home. This could be combined with a health questionnaire to catch more potential cases of COVID-19, e.g. https://covid-19.ontario.ca/self-assessment/. Another advantage of asking employees to measure their temperature at home is that it intrudes less on employee privacy. Some employers have developed an app that allows employees to take a health questionnaire at home, including a temperature check. Assuming employees pass the screening, they get a green signal on their phone which they can show at the door as they enter the workplace.
- Who will measure employees’ temperatures? As stated above, it is better not to have one employee actually taking other employees’ temperatures. First, it puts that employee at risk because they will likely have to get close to other employees. Second, that employee will be given access to many other employees’ personal health information, which increases privacy concerns. Presumably that employee is not a nurse or a doctor who is qualified to take temperatures and protect personal health information. Still, if the employer wants to screen employees’ temperatures, someone will likely be required to stand at the door and oversee the process. The employer may be able to hire a third party to screen employees. Alternatively, the employee(s) performing the screening should be trained, including on COVID-19 symptoms, privacy and managing conflict, and be provided with gloves, masks and hand sanitizer.
- In addition to taking temperatures, the screener should also ask whether the employee has any flu-like symptoms or is otherwise feeling unwell. The screener should also ask whether the employee has had close contact with someone who has been diagnosed with, or is presumed to have, COVID-19. The screener could administer the Public Health self-assessment (above). An employee who has a temperature of above 37.8 C (or as recommended by Public Health) or who answers yes to any of the screening questions should be advised to return home. The employee should be provided with a mask and advised not to take public transit. The employee should be advised to self-isolate and contact their doctor or public health to see what further testing or treatment is recommended.
- Employees’ temperatures and answers to health questions should not be recorded and retained. To the extent that records are necessary, they may include the names of employees who attended work and those who were sent home. Keeping records of temperature checks or other personal health information greatly increases privacy concerns.
- The temperature or other personal health information should not be used for any purpose other than determining whether or not the employee can enter the workplace.
- The results of the temperature screening and other personal health information should be kept confidential. Other employees should not be advised of this information, except as needed to do their job.
- If an employee refuses to be tested, what will the employer do? Normally, in order to enforce a temperature screening policy, that employee should not be allowed to enter the workplace. Will they be disciplined or simply instructed to work from home?
- The employer should develop a policy that covers all of the above and provide employees with the policy before they begin returning to the office.
Employers should consider what training will be needed for employees who are returning to the workplace. Training should include instructing employees on new COVID-19 policies, new workplace policies, workplace re-opening guidelines, hygiene and sanitation policies, and responding to COVID-19 related workplace issues. Employers must also consider effective methods of communicating new policies and training programs to their employees. The policies should remain accessible to all employees and if possible should be posted on an accessible board or saved in an accessible online platform.