The Law of Work
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
The Law of Work
Common Law of EmploymentCOVID-19Employment RegulationPrivacy

Responding to a potential COVID-19 case in the workplace – steady as she goes

by Daniel Michaluk March 20, 2020
written by Daniel Michaluk March 20, 2020

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): https://lawofwork.ca/responding-to-a-potential-covid-19-case-in-the-workplace-steady-as-she-goes/

COVID19employment lawLabour LawPrivacy
0 comment
0
FacebookTwitterLinkedinEmail
Daniel Michaluk

Leave a Comment Cancel Reply

You must be logged in to post a comment.

previous post
COVID-19 and Public Education Collective Agreements in Quebec
next post
Work Refusals and COVID-19

You may also like

Why Gig Workers Are NOT Independent Contractors: A...

September 19, 2022

CUPW’s Unfair Labour Practice Complaint Against Uber Raises...

September 16, 2022

How Canadian Unions Responded to Vaccine Mandates, Protests,...

March 17, 2022

Reforming Non-Compete Law: A Cross Border Perspective

March 3, 2022

The Problem With Ontario’s Proposed Gig Worker Law...

February 28, 2022

Can Human Rights Law Help Workers Fired for...

February 18, 2022

Will Conservatives Add “Vaccine Status” to Human Rights...

February 9, 2022

Is UFCW’s Mysterious “Agreement” With Uber Lawful?

January 27, 2022

Would the Recommendations in Ontario’s New Report on...

December 10, 2021

The New European Platform Work Directive Through a...

December 9, 2021

Follow Us On Social Media

Twitter

Latest Tweets

David J. Doorey🇨🇦 @TheLawofWork@mas.to Follow

Law Prof. Talking #labor & #employment #law to the masses. @YorkUniversity @OsgoodeNews @LSELaw @CLJEHarvard @Jacobin @OnLaborBlog https://t.co/5V9r8VPHsh

TheLawofWork
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
9h

I can’t believe that Almost Famous came out 23 years ago.

Time is flying by.

Reply on Twitter 1622776388179705859 Retweet on Twitter 1622776388179705859 3 Like on Twitter 1622776388179705859 14 Twitter 1622776388179705859
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
10h

I had an LLM student who had a part-time job phantom writing labor arbitration decisions based on arbitrator’s notes and instructions.

Like law clerks do for judges (except parties don’t know about the phantom arb writer).

Is using a machine different? Interesting debate.

Valerio De Stefano @valeriodeste

The crucial part starts on p. 5, where the Court reports the answers to the legal questions they posed to ChatGPT. Then, at the end of p. 6, the Court adopts the arguments given in these answers as grounds for its decision.

Reply on Twitter 1622759377944952834 Retweet on Twitter 1622759377944952834 5 Like on Twitter 1622759377944952834 8 Twitter 1622759377944952834
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
11h

Quebec passed anti-scab legislation in 1977, BC in 1993, & Ontario 1993-95.

Hysterical claims that these laws cause job losses & loss of investment aren't supported by evidence. Businesses just don't like them.

Short 🧵

1/

Seamus O'Regan Jr @SeamusORegan

We’re banning replacement workers, as we said on Oct. 19th.

We’re working with unions and employers to get the balance right.

As agreed, government will introduce legislation by the end of this year.

Reply on Twitter 1622745098088861702 Retweet on Twitter 1622745098088861702 16 Like on Twitter 1622745098088861702 39 Twitter 1622745098088861702
Load More

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Climate and Just Transition
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Newfoundland
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Sports Labour
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.