By Dan Michaluk and Matin Fazelpour, Hicks Morley
One of the more frequent questions we have received from employers about the ongoing coronavirus outbreak is whether they can disclose the identity of an employee who may have been infected with COVID-19 to other employees without consent.
The answer depends on the facts. We’ll elaborate, but the question reveals an assumption about the propriety of notification that first deserves to be challenged. In short, in many situations notification may not be warranted and do more harm than good.
Consider the following scenario:
The workplace remains open. An employee who has worked in each of the last four days, in contact with other employees, calls in sick. Normally, an employer obtains no further information and may have no more entitlement to information, but in this case the employee leaves a voice message that says, “I have a fever and I’m concerned about COVID-19“.
That’s it. The employee may or may not get tested. May or may not speak with a doctor. The test may or may not come back positive. If the employees is diagnosed, that may take days.
This, we understand, is a tough situation for an employer. The instinct of many is to DO SOMETHING, and fast.
Employers, though, should understand four things. First, at this point in the scenario above, any belief that there has been exposure in the workplace is very speculative, resting on worst case assumptions about both the diagnosis and workplace transmission. Second, an employer has a very limited ability to collect the information needed to make a proper assessment; even if the employee can be contacted and is well enough to collaborate, this is an assessment that ought to be done by a medical professional. Third, given there is no treatment for coronavirus (and no early treatment benefit), warning others who may have been exposed in such a situation has limited benefit. And fourth, there could be a significant cost to “erring on the side of caution” in this context; privacy concerns aside, a vigorous mitigation effort has the potential to shut down a service, for example, that is needed by the public.
Yes, individuals may have been infected in the workplace and may remain in contact with others in and out of the workplace. Considering that the Public Health Agency of Canada’s current recommendation for those who may have been exposed is to “go about your day but avoid crowded places and increase your personal space from others,” this may be an acceptable risk.
To mitigate that risk, the simple advice to employers faced with the scenario above is to:
- employ special measures to disinfect the workplace;
- re-communicate the need to employ social distancing in the workplace (which should not be assumed to be a “safe haven” from the coronavirus); and
- contact public health, ask for advice and follow the advice.
Notably, our firm had two instances this week in which clients faced with scenarios similar to the one above contacted their local public health agency for advice and were told not to notify other employees.
What, then, if a work colleague of the employee in our scenario calls back four days later and says, “It’s not looking good. The employee has been diagnosed with COVID-19 and is on a respirator in the hospital. Just wanted you to know”? Though there is still analysis needed to determine what purpose notification would serve and always reason to contact public health and follow its lead, there may now be a sound a basis for notification.
An employer who has a very strong view into what contact occurred in the workplace may not need to identify the infected employee. (Video surveillance may help.) Or, in other cases it may be sufficient to issue a general warning to a well-defined affected population. For example, it may be sufficient to advise all employees of a retail store to follow the Public Health Agency of Canada recommendation we have identified above. In other cases identification may be a necessary part of the mitigation effort. Identification is effective, and is the only way to allow other employees to self-identify as being at risk.
Employers who are not subject to privacy legislation can simply weigh the competing interests and identify when confident in their rationale for identification. Employers who are subject to privacy legislation face more technical and arguably greater constraints. The British Columbia Personal Information Protection Act, for example, would permit the disclosure if “reasonable grounds to believe that compelling circumstances exist.”
Prudent employers are more proactive, and as part of their pandemic plan, ask employees to give them as prompt notification of a formal diagnosis as possible. In doing so, they also explain precisely how that information will be used. In other words, it’s not hard to get consent and important to structure the response to a potential case of COVID-19 so it is sound.
Daniel Michaluk & Matin Fazelpour, “Responding to a potential COVID-19 case in the workplace – steady as she goes” Canadian Law of Work Forum (March 20 2020): http://lawofwork.ca/responding-to-a-potential-covid-19-case-in-the-workplace-steady-as-she-goes/