Written by Daniel Michaluk, Hicks Morley
As we move deeper into the global pandemic, the use of temperature screening to control the spread of the coronavirus outbreak is presenting as a potential security and public health control. This is a short explanation of the applicable Canadian law and an argument for using temperature screening despite its flaws.
Temperature screening involves taking one’s temperature to assess the risk that they carry the coronavirus. It may be used by those who control physical access to premises. Employers, for example, control access to workplaces. Service providers may likewise control access to stores, entertainment venues and other physical premises. Along with this control comes a range of safety-related duties that arise out of occupational health and safety legislation, occupiers’ liability legislation and the common law. If access is tightly controlled, screening to address the risk of on-premises exposure to the coronavirus is feasible and arguably legally required.
Temperature screening, however, is plainly an imperfect screening mechanism. Although we are still learning about the coronavirus, a recent study of confirmed COVID-19 cases in China indicates that individuals can transmit the virus well before they have a fever or show other symptoms of COVID-19. And, of course, there are numerous reasons why someone might have a high body temperature. Aside from the seasonal flu, physical exertion can cause a spike in body temperature, for example.
This is why the World Health Organization says that temperature screening should always be used with other controls – health messages, a primary questionnaire and data collection and response. Employers and other organizations who wish to meet their safety-related duties should therefore not rest on temperature screening alone.
Temperature screening nonetheless has a compelling appeal in today’s near dire circumstances. First, temperature screening supplements screening by questionnaire well because it is relatively quick to administer. Second, the cost of false positives are arguably acceptable; Public Health Ontario currently recommends that every person with a fever, regardless of its cause, should self-isolate given mere risk the fever is caused by a coronavirus infection. Third, temperature screening sends an important message. Dr. Issac Bogoch of Toronto General Hospital recently explained to the Washington Post that simple screening measures can be a means of signaling the kind of commitment to public health that is required by everyone. “The optics matter,” he said.
This leads to the question of justification – a matter of “necessity” or “reasonable necessity” under Canadian privacy law, human rights law and the arbitral law that governs unionized workplaces.
The application of this necessity requirement is far from uniform, and in many contexts individuals will have no right to assert. A non-unionized employee of an Ontario employer, for example, may either consent to a temperature check or refuse. Consent is a defence to any civil privacy breach claim, and a non-unionized employee in Ontario has no ability to mount a direct challenge to the screening policy itself (apart from a making a difficult human rights claim based on perceived disability).
In other contexts, justification may be required. Screening by public bodies and commercial actors, for example, is regulated across Canada and could be challenged by way of a privacy complaint. In that case, one of our privacy commissioners could ask for justification – for an argument that temperature screening is necessary in the circumstances, despite its flaws.
None of our commissioners have provided guidance on any form of screening for the coronavirus yet, though they tend to be pragmatic. If they do take interest in this issue, the experience in Italy ought to be a consideration. There, on March 2nd, the Italian data protection supervisory authority – the Garante – directed employers to refrain from collecting any information about flu-like symptoms being experienced by employees or their close contacts because public health is not an employer concern. Now that Italy’s death toll is over 2,500 and the country is in lock-down, this advice seems bad. Done properly – by a trained individual who uses a proper, calibrated instrument – temperature screening by employers and others is a minimally invasive way of identifying some COVID-19 cases and preventing somespread of the coronavirus. In these times, some benefit is enough benefit.
Daniel Michaluk, “Temperature screening for the coronavirus – necessary but not sufficient” Canadian Law of Work Forum (March 18 2020): https://lawofwork.ca/?p=12001