Written by Dan Michaluk, Hicks Morely, Toronto
Employers across Canada are preparing to invite a return to work in the coming months, all looking to protect against the spread of COVID-19 in the workplace. The best return-to-work plans will feature an array of controls: facilitating and enforcing physical distancing, limiting movement in the workplace and environmental hygiene will be key. And though a focus on these basics will significantly reduce risks, employers are also interested in adopting testing and tracing protocols. This post explains what such protocols might entail, why they are of interest and what legal issues they raise.
As workplaces reopen many employers will adopt active screening – a process of asking employees questions (sometimes with a temperature check) to determine if they may be infected with COVID-19 and should be denied entry to the workplace.
The problem is that active screening protocols are very biased towards exclusion. The current Ontario assessment model, for example, currently tells anyone with a headache to self-isolate and speak to a physician about getting tested for COVID-19. It also says, “You should tell people to monitor their health and to self-isolate if you were in close physical contact with them in the 2 days before your symptoms started.”
To make things more complicated, we can expect employees to start getting pinged with “exposure notifications” from contact tracing applications that will someday soon be rolled out across Canada.
To say employers face a potential productivity problem is an understatement. Even before the coming of digital exposure notification, one headache or unexplained case of the sniffles could take out an entire group of workers – a “work pod” if employees have been grouped to prevent the spread of infection. Employers understandably want access to quick and accurate diagnostic information.
The Promise of Testing
Testing and diagnosis is complicated and not perfectly accurate, but the right test employed well promises a better, more efficient means of controlling access to the workplace than one that relies on screening that is backed by the public health system.
Some employers may wish to test only employees who are screened out of the workplace (as a means of facilitating quick return). These employers will consider incentivising employees to take a test by placing them on an unpaid leave unless sickness is later confirmed. Unionized employers may not have this option.
Other employers will consider periodic testing of asymptomatic employees, an expensive proposition likely reserved for critical workgroups. The ability to mandate such testing will depend on the strength of the need. Unionized employers will face greater risks, and the application of privacy legislation (which does not uniformly apply to employees in Canada) is also relevant.
All this may be somewhat academic until there are viable testing resources available to Canadian employers. The Spartan Cube from Ottawa’s Spartan Bioscience showed great promise because it supported on-site testing with results available in as little as an hour. The Cube was recalled, however, on May 5th based on concerns about efficacy. The CBC reported last week that a lab in Newfoundland is preparing to offer testing to Candaian employers, with results issued within four hours after samples are received in the lab. It is unclear if this is fast enough to meet employer requirements.
The Promise of Tracing
The other, related protocol involves contract tracing in the workplace.
Two months into our lockdown, it’s now apparent that employers play a leading role in enforcing self-isolation directions. Recall that, in Ontario, a direction to self-isolate based on close physical contact can be triggered by symptoms alone. Workplace contact tracing therefore precedes (and complements) tracing done by public health authorities, which is based on a diagnosis. Employers, in fact, play an essential role in supporting our public health system.
To play this role employers first need to receive diagnostic information from their employees. Active screening will generate this information, but employers should tell employees who self-identify as possibly sick with COVID-19 to make a report. The normal rule (that arises out of Canadian arbitral law) against receipt of diagnostic information simply cannot be sustained if employers are to effectively manage the risk of COVID-19 exposure in the workplace.
Employers must then identify “close physical contacts” at the workplace, which is why they must consider where work will occur by whom, with a general emphasis on controlling movement about the workplace and keeping a record of who works where. Done well, this may be enough to support effective identification of at risk employees. Employers who cannot control movement about the workplace in this way will consider using smart badge, cell phone or other technology to collect workplace contact data –i.e., data about who has been in contact with whom, when and for how long.
The gathering of workplace contact data is bound to raise sensitivities to surveillance, though is not the same as location tracking and is less intrusive than the video surveillance already in use at many Canadian workplaces. Like with testing, the risks and constraints vary depending on whether the workplace is unionized and whether privacy legislation applies. The general requirements are justification based on need, reasonable data security and good data governance (including notice and a policy commitment to limited use).
Canadian employers rightly understand the significant role they will play in our return to productivity and the importance of an efficient means of diagnosis. This is why workplace testing and tracing has become a top concern.
Dan Michaluk, “Testing and Tracing in the Canadian Workplace Demystified” Canadian Law of Work Forum (May 25 2020): https://lawofwork.ca/?p=12552