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Can employers ask staff what they’re up to outside work during the pandemic?

Can employers ask staff what they’re up to outside work during the pandemic?
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TORONTO -- Between the ongoing anti-Black racism protests, provinces cautiously reopening, and the temptation to gather with friends again as summer looms, do employers -- concerned about workplace safety during a pandemic -- have the right to ask their staff what they’ve been up to on their personal time?

Employers have obligations under o to keep their workplace and employees safe from harm, but those same employees are also guaranteed privacy rights . If someone poses an “identifiable threat” to infecting others in the workplace, an employer can ask them to stay home. The question is, what is considered an “identifiable threat”?

Prior to the pandemic, the law has generally fallen more on the side of employee privacy, lawyers who spoke with CTVNews.ca said, but COVID-19 has shifted those boundaries, leaving legal experts in some disagreement over whether laws around workplace safety supersede those that protect an employee’s right to privacy. 

Many employers may be under pressure as well from their own employees who want to know what kind of exposure they face at work. Meanwhile, employees may feel obligated or pressured to answer questions that may prey on discriminatory assumptions.

“You can’t just blanket ask someone, ‘what were you up to last weekend? Did you leave the house?’” said Daniel Lublin, a founding partner at Canadian employment law firm, Whitten & Lublin . He called these types of questions overly broad, unnecessary, unreasonable intrusions and “completely inappropriate.”

Without confirmation that a well-publicized crowded place you visited had an outbreak or identified a known case, for example, the mere act of being there does not mean you were exposed to the virus any more than your last trip to the store, he said.

While employers would normally not be allowed to ask many of these questions, Howard Levitt, an employment lawyer at Levitt LLP , disagrees and says safety trumps privacy under current circumstances.

“That’s something that people are going to have to get used to,” he said. It is understandable that people are very protective of their privacy rights, he added, but the pandemic changes that balance.

“I think people are extrapolating on pure privacy law and what it said two months ago, and are not distinguishing it with occupational safety obligations that employers have.”

“DID YOU ATTEND THE PROTEST? DID YOU GO TO TRINITY-BELLWOODS”

Two weeks ago, while much of the country remained in some level of lockdown, thousands of people gathered with friends at Trinity Bellwoods Park, a public green space in Toronto, despite physical distancing guidelines still in place. More recently, protesters from coast to coast defied lockdown measures to protest the death of George Floyd and other Black people at the hands of police. 

These can be tricky situations for employers to navigate.

Some legal experts say questions like, “Did you go to Trinity Bellwoods?” or more currently, “Did you attend any George Floyd protests?” could expose employers to accusations of discrimination under human rights laws, especially if they only ask certain groups of employees about their personal activities. While an employer can make reasonable inquiries into whether a staff member is acting safely during a pandemic, they need to tread cautiously, since employees cannot be told where to go and to not go outside their workplace or asked about lifestyle changes.

“You have to be very, very careful. Because although people are aware that drastic times call for drastic measures, they could be accused of potentially breaching privacy,” said Jared Lecker of employment and disability law firm, Lecker & Associates .

“Employers have a balance to play, because they cannot pry too much into the personal life of an employee, but at the same time, they have to protect the other employees that want and have genuine concerns about where their coworkers have been.”

Employers could face significant liability if either responsibilities are mishandled.

“Look at what happened at Trinity Bellwoods recently, for example. You want to make sure your people weren’t there. You have a duty to protect your people,” Levitt said.

“There were hundreds of people -- almost like a mosh pit -- congregating together...If I had an employee who was at Trinity Bellwoods, I would ask them to quarantine for two weeks. I wouldn’t let them near the workplace. I think it would be negligent not to do that.”

Levitt added that if an employee was known to have visited a hotspot, asked by their employer about it and then lied, it could be cause for dismissal.

Lublin, however, dislikes the Trinity Bellwoods example and in his view, and believes these types of questions lead down a slippery slope.

“The more you say to someone, ‘Were you here and not there?’ Where does it end?” he asked.

Lawyers generally agree that specific questions involving whether an employee spent time at a hotspot that had an outbreak, was in contact with a known case, or have COVID symptoms themselves, are generally acceptable. Employees can also be reasonably asked whether they had been told by public health to self-isolate through contact tracing or to have their temperatures checked.

CONSENT IS KEY

In Lublin’s view, an employer is crossing a line asking questions based only on the mere possibility of exposure, especially if they decide they do not want the workplace risk even when there is no concrete medical basis that would keep an employee from working.

“You’re on really thin ice if you say to someone, ‘Hey, have you potentially come into contact with someone that potentially exposed you? You don’t have any symptoms, but by the way, you’re going to stay home and I’m not paying you,’” he said.

“If an employer wants to send you home in one of those grey areas, damn right they should pay you for it.”

Some lawyers suggest employers could set up a health and safety committee, for example, that would allow employees to ask the questions instead, which eliminates some of the power imbalance and keeps employers one step removed from the privacy intrusion.

“They understand they don’t want to be asked these questions, but they don’t want to get sick by an employee who’s been coy about where they’ve been on the weekend,” said Lecker, adding that consent is key, and that unless the employee agrees to these questions, they are not going to be interpreted in a good way.

“When society believes these questions are appropriate, then the law falls in line,” he explained. “It’s a moving target. Employee privacy has previously been a sacred thing.”

Those privacy rights have become stronger toward employees over the years, but the pandemic has created an unusual dynamic, with employers arguably asking these questions on behalf of employees, making the pendulum swing back towards employers as workers also push for more workplace transparency.

“The short answer would be, it’s more focused toward employee protection, but we are chipping that away in recognition of the responsibilities we want employers to uphold, which is to protect us from other employees that might cause us harm,” Lecker said.

“If you re going to do this, you have to do this in a very narrow way, very careful way, and they have to consent to it.” 
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