For many employers in Ontario now preparing to welcome returning employees back to the physical workplace, implementing screening measures in the workplace is undoubtedly a key area of focus. With the purpose of reasonably mitigating against COVID-19-related risks, and protecting health and safety in the workplace, such measures can be appropriate, depending on the circumstances.
In this update, we provide employers with some insightful considerations, best practices and tips surrounding the following questions:
How to determine the extent to which employee screening control measures should be considered for the workplace
Generally, under Ontario’s Occupational Health and Safety Act (the OHSA), employers are required to take every precaution reasonable in the circumstances to protect workers. Given the highly infectious nature of COVID-19, this obligation may include implementing reasonable screening measures to limit or prevent the spread of COVID-19 in the workplace.
The appropriateness of implementing screening or control measures to eliminate or minimize the potential for occupational exposure to transmission and/or infection will depend on the risk level of each workplace, and how that risk can be mitigated. For employers reopening or with employees returning to the physical workplace, it will therefore be crucial to carefully assess (and regularly re-assess) the level of risk in the workplace, and accordingly craft appropriate and effective risk mitigation strategies to protect health and safety. To properly navigate this exercise, using risk-mitigation tools geared specifically to employers operating within Canada, or across borders globally can prove to be particularly helpful.
Once a risk assessment is completed, it may be determined that implementing mandatory screening measures for employees entering in contact with the physical workplace is necessary and reasonable in the circumstances.
What screening measures may be implemented and what related considerations should be factored in?
Screening employees for COVID-19 can take different forms and vary from one workplace to another depending in large part on the assessed level of risk and the employer’s available resources. As addressed in more detail below, more common screening or control measures may include mandatory self-declaration checklists, or voluntary workplace reporting programs. For workplaces assessed to be at a higher risk of transmission or infection, implementing testing measures may be appropriate.
Mandatory self-declaration checklist, or workplace policy or protocol
Screening employees based on a set list of questions or criteria is likely the most common screening measure implemented by employers to date, potentially in part because it can be rolled out and adapted relatively quickly, is generally appropriate for most at-risk workplaces, and may be conducted in different ways.
Measures in this regard could include crafting an employee self-declaration checklist, or implementing a new workplace policy or protocol that must be reviewed before physically entering or interacting with the workplace. If one of the items on the checklist or in the policy applies, employees should be trained to know not to report to the workplace that day and should not be permitted to physically access the workplace until it is safe for them to do so.
Items disqualifying an employee from entering the workplace should be limited to and focused on what is reasonably necessary to protect health and safety in the workplace, such as any out-of-country travel in the last 14 days, any COVID-19-related symptoms or at-risk interactions in the last 14 days, and any other industry-specific requirements that may apply. For further government guidance on this topic, please click here.
Voluntary self-reporting programs
Apart from Q&A measures, some employers may also consider implementing workplace voluntary self-reporting programs, through which employees may confidentially report any potential OHS risk or to a designated team of human resources and/or management professionals, in a safe and collaborative manner.
Reportable concerns could for example relate to (i) confirmed or possible cases of COVID-19 in the workplace; (ii) social distancing, personal protective wear and gear, and cleanliness measures; (iii) an expressed need for further training; or (iv) difficulties coping and related mental health challenges.
For employers with employees returning to the workplace, providing a mechanism or forum where employees are empowered to meaningfully take part and have a say in protecting health and safety in the workplace may be beneficial for a number of reasons. Indeed, programs such as these may not only serve to protect health and safety, but may also help strengthen employee morale and overall confidence that workplace health and safety is a shared, ongoing and vitally important exercise.
For workplaces assessed to be at a higher risk, implementing mandatory temperature testing measures before an employee is allowed access to the workplace may be viewed as appropriate and reasonable in certain circumstances. Where it is determined that testing measures should be implemented, the prudent employer would give special consideration to the following:
- Give notice: Provide employees with advance written notice of the testing measures being implemented. The notice should (i) explain that these measures are being taken to protect against the risks transmission or infection of COVID-19; (ii) apply to all employees physically accessing the workplace; (iii) indicate where and when the employee is to report for testing; and (iv) describe the testing methods being used and provide information on the steps that will be taken based on the outcome of the test.
- Get a proper tester: Ensure any testing is performed by a qualified medical professional or someone properly trained by a qualified medical practitioner. Training in this regard should include instruction on the temperature threshold below which employees must test to enter the workplace, and the use of any necessary equipment. Of note, testing should be conducted in the least intrusive manner possible (i.e., using no contact devices or methods).
- Provide an adequate testing space: Provide a space for testing that protects the employee’s privacy. This could include designating a testing space in a private, low-traffic area.
- Ensure safe testing: Ensure testing is conducted safely and does not place the employees or the tester at abnormal risk. Risk mitigation measures in this regard can include (i) frequently cleaning and disinfecting the testing space; (ii) providing hand sanitizer or washing stations; and (iii) ensuring that any required or recommended personal protective equipment while performing the tests is worn. For further guidance on protecting workers in the workplace, please click here.
- Accommodate where possible: For some employees, testing measures may need to be reasonably accommodated under Ontario’s human rights and accessibility laws. For instance, an employee with a disability with limited mobility may require an accommodation to properly access the testing area or to use any testing-related equipment. It should be recalled that employers and employees are generally required to work together to craft a reasonable accommodation, up to the point of undue hardship.
- Have a plan for employees with a high temperature: Have an actionable plan that can be quickly and safely implemented if an employee’s test results are higher than the temperature threshold. Here, the employee should be instructed to leave the workplace immediately and informed that he or she can’t access the workplace until his or her bodily temperature returns to normal. To facilitate this, employers should have clearly defined steps and procedures in place to allow employees to leave the workplace safely and discretely, preserving the employee’s privacy and dignity at work. In addition, employers should consider the following should an employee’s temperature test higher than the set threshold:
- Recommend a self-assessment: Recommend that the employee complete the online self-assessment or call either Telehealth at 1-866-797-0000 or his or her primary care provider.
- Protect personal information: Employers should not keep records of test results unless reasonably necessary for a legitimate purpose, such as defending against a potential lawsuit or for complying with OHS laws. To the extent any records are kept, they should be: (i) limited only to the bare minimum of information necessary; (ii) kept securely and away from employees’ general files to limit access, use, and disclosure to those on a “need to know” basis; and (iii) properly destroyed when they are no longer required to be retained. Employees should be told to whom they may direct any questions they have about the collection, use, access, and retention of this information.
- In unionized workplaces: Where the testing is conducted in a unionized workplace, it must comply with any applicable provisions of the collective agreement. Consulting with the union prior to implementing testing measures may also be advisable, particularly where it is not clear whether testing is permitted under a collective agreement, including the applicable management rights clause.
- Review, re-evaluate, adapt: Any testing program should be regularly reviewed and re-evaluated, and any changes should be made in accordance with direction and guidance given by public health authorities.
- Keep employees informed: Employers may find that promptly communicating any new or updated information to employees may in turn work to enhance overall transparency, efficiency, trust and other shared qualities in the employer-employee relationship.
In Ontario, employers should be extremely cautious when considering any mandatory viral testing for COVID-19. Indeed, doing so can pose a number of problematic issues, and in many cases, may not be a legally viable or sound option. Before implementing any such measures, seeking legal counsel is crucial.
In the limited situations where viral testing is done, the above-noted tips would generally be worthy of consideration. However, it is important to note that many legal requirements and considerations for viral testing differ from those related to temperature testing. Mostly importantly, in the limited scenarios where viral testing is appropriate, it is important to ensure any testing be performed by a qualified medical practitioner as understood under OHS laws, such as a registered nurse who is able and qualified to properly administer the tests and interpret the results. Unlike temperature testing, it is not appropriate to train an employee to administer a viral test.
Moreover, there are a number of further considerations that may come into play. For example, human rights considerations beyond the prohibited ground of disability may arise given the heightened level of intrusiveness that viral testing may pose. For example, depending on the facts of the case and how testing is being conducted, accommodation requests made on the basis of creed-related grounds could ask that the medical professional conducting the testing be of a certain gender.
Further, employee information gathered during testing may be subject to certain record-keeping requirements of medical information under Ontario’s Personal Health Information Protection Act, 2004 (PHIPA). Employers should inquire whether the medical practitioner will keep records of the test results in accordance with this legislation, and advise employees of the same.
Again, it must be emphasized that viral testing in Ontario will only be appropriate in very limited circumstances. On a related point, where an employer is advised of a positive COVID-19 case in the workplace, please see our publication on managing positive cases of COVID-19 in the workplace here.
In the coming months, screening measures, namely testing, will undoubtedly remain a point of focus for employers hoping for a relatively safe reopening in Ontario. While it can be expected that health and safety considerations will remain paramount throughout the summer, employers may nonetheless be faced with complex situations where competing interests such as privacy and human rights will also have to be properly weighed.
Looking forward, it can be expected that issues surrounding screening will continue to be relevant and subject to ongoing discussion. Indeed, in a relatively small timeframe, important and promising scientific advances have been made in different parts of the world, which have collectively served to better our understanding of the virus. Once the ultimate goal of finding an effective and approved COVID-19 vaccine is reached, it is a matter of time before vaccination as a screening measure becomes the next hot issue. We will keep you apprised of any new developments.