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Howard Levitt: Some law firms are telling companies not to disclose which employee has COVID-19. That’s misguided and dangerous

How do you maintain a safe workplace while respecting the rights of your employees?

The law requires employers to take all reasonable steps to protect anyone who enters the workplace, including employees. This duty will be subject to intense scrutiny during a pandemic and legal woe will befall any employer careless with the risks emanating from COVID-19.

The precautions necessary to create a safe workplace vary, requiring employers to stay up to date with the latest information from local government and health authorities.

But companies are responsible for more than just safety. Even during a global pandemic, they must still respect the basic human and privacy rights of their employees.

Without question, an employee who has COVID-19 cannot be allowed to return to the workplace until he or she has fully recovered. Any employee that came into contact with the infected employee, or any other infected person, should self-isolate at home for 14 days until it is clear that they, too, are not carriers.

But if an employer merely suspects that an employee has the virus, it must act more cautiously.

Negative treatment of an employee who has, or is believed to have, the virus, for a reason unrelated to public health or safety, is discrimination under the Ontario Human Rights Code

Discrimination based upon even a “perceived” disability is unlawful discrimination and, this week, the Ontario Human Rights Commission released a policy statement on COVID-19.

The policy makes clear that the negative treatment of an employee who has, or is believed to have, the virus, for a reason unrelated to public health or safety, is discrimination under the Ontario Human Rights Code.

This means that even if they are motivated by safety concerns, companies cannot make reactive decisions that violate the human rights of their employees. An example of this would be singling out individual employees, based on only a hunch or personal suspicion, to send them home or to restrict their duties.

An employer has the right to order an employee to stay home. But if the employer makes that call, the decision must be reasonable and informed by all the relevant and up-to-date information.

The privacy rights of employees who might have COVID-19 is another tricky area.

With certain exceptions, employers are forbidden from sharing “personal information” of employees without their consent.

An employee’s medical details is personal information. This includes whether that worker has tested positive for COVID-19 and even whether they have associated symptoms.

This does not change an employer’s responsibilities to ensure a safe workplace. Employers are still entitled to (and are required to) take the appropriate and reasonable steps to ensure the safety of their employees.

However, they still must act cautiously when dealing with the personal medical information of their employees.

Some large law firms have advised employers in communiques that they should not share the name of an employee who has tested positive for COVID-19. I view this advice as misguided and even dangerous.

In these circumstances, the employer’s first priority must be the safety of everyone who has been in the workplace and may have come into contact with the employee who tested positive.

Employees should know who had the virus so they can assess whether they had contact with that person. Relying upon the infected person’s memory or reporting is, in my opinion, insufficient.

If the company fails to sufficiently safeguard the workplace, even out of concern for privacy rights, they have exposed themselves to a lawsuit from anyone who came into contact with that employee and ultimately became infected.

Of course, an employer must still try to minimize the extent to which he or she shares the medical condition of any employee, but the safety of the workplace takes precedence and that is the context in which the balance must be analyzed.

As part of a plan to sanitize and control the workplace, an employer should monitor employees and even customers for signs of the virus. But employees have rights, too.

For instance, some workplaces use thermometers to detect employees who have a fever, and have asked employees to disclose symptoms most commonly associated with the virus, such as a dry cough and difficulty breathing.

Although this is permitted under the circumstances, if a company intends to start tracking the health of its workforce, it should do so in a way that is minimally intrusive, safe and conducted by qualified individuals.

Employees should be told in advance of what is planned, why the employer is doing it, and how it will be implemented. The employer should only request that information deemed necessary to determine whether the employee may have the virus and it should not collect any more information. Once collected and assessed, the medical information should not be saved or published.

These are extraordinary times and companies are in the unenviable position of having to make difficult decisions. The damages could be calamitous if they get it wrong.

The best way for employers to handle this incertitude is to keep themselves informed of all of their obligations, follow the latest news and updates from their local governments and health authorities, and seek professional advice as necessary.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.

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