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Can an employer require the employee to provide proof of a negative COVID-19 test result before they return to work?

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Canada-Man

Reviewer
Joined Apr 16, 2015
Messages 2,197
know your rights


With the prevalence of the virus in our community, many workplaces will be impacted by employees either testing positive for COVID-19 or being a close contact of a confirmed case.
Nelligan Law gratefully acknowledges the contribution of Melanie Sutton, Student-at-law, in writing this blog post.
As governments ease restrictions and businesses prepare to re-open, employers and employees alike have questions about workplace health and safety.
Can an employer require the employee to provide proof of a negative COVID-19 test result before they return to work?

The short answer is no.
Current testing guidelines do not allow for asymptomatic individuals to be tested. Therefore, an employee who has recovered from COVID-19 may not be allowed to be retested to confirm that they are now negative.
A policy preventing healthy employees from coming to work because they cannot prove they no longer have the virus is therefore problematic and could constitute a constructive dismissal. A constructive dismissal may occur where an employer demonstrates that it no longer intends to be bound by the employment contract or intends to terminate the employment relationship.
If an employer prevents an employee from returning to work without a confirmed negative test result for COVID-19, and the employee cannot obtain a test, the employee may be able to claim that the employer is effectively putting an end to the employment relationship.
Importantly, a constructive dismissal is always a case-specific determination and you should always obtain advice from an employment lawyer before making such a claim against your employer. If you resign prematurely and your constructive dismissal claim fails, you will likely be deemed to have voluntarily resigned, which would effect your entitlements.
What if I am trying to protect my other employees and customers?
Employers have an obligation to provide a safe work environment, meaning that workplaces operating at this time must respect the provincial government’s guidelines to protect its employees. Employees should be allowed to return to work provided provincial government and public health guidance indicates it is safe to do so.
Ottawa Public Health advises that individuals who have tested positive for COVID-19, or who have had symptoms of the disease following known contact with someone who has tested positive, should self-isolate and can discontinue self-isolation when:
  • They have self-isolated for 14 days after symptoms have started; and,
  • They no longer have a fever; and,
  • Their symptoms are improving.
Therefore, employers should follow these guidelines. Even once the employee is allowed to discontinue self-isolation, physical distancing should continue. This is where the province’s industry-specific guidelines come into play. All workplaces that are open should be operating in a manner that reduces risk of transmission of COVID-19.
Requiring an employee to have a negative test before coming back into the workplace is therefore not necessary, and may – if the employee is asymptomatic – be an impossible condition to satisfy. If you have questions about your business or employment situation, please contact an employment lawyer.
Please note the COVID-19 situation is changing quickly, and this information is accurate at the time of publication.

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Canada-Man

Reviewer
Joined Apr 16, 2015
Messages 2,197

Can my employer make me take a COVID-19 test?
Reviewed:
August 7, 2020
ANSWER
There are rules about what kind of medical information employers can make you give them. For example, sometimes, they can make you take medical tests, such as an alcohol or drug test, if you have a serious accident at work.
It's still not clear which tests your employer can make you take for COVID-19. The information below is based on what we know at this time.
Workplace testing
Employees have a right to privacy, including privacy about their health. This means that an employer cannot normally force you:
  • to tell them your medical information, or
  • do a medical test unless they have a good reason.
To decide whether your employer can ask you about your medical information, a court will balance your right to privacy with the employer's need for the information.
The law says that employers have a legal duty to provide a safe workplace.
One of the risks that employers need to protect against is COVID-19. This means that they may need some of your medical information about COVID-19 to protect other employees or the public. Because of this, employers can ask for more information than normal.
Protecting against COVID-19
The government of Ontario has told employers that they should "screen" employees for COVID-19 by asking whether they've had:
  • any symptoms, or
  • any contact with people who have the virus.
You probably do have to answer these questions because this advice comes from public health authorities and COVID-19 is an emergency situation.
But it's not clear how much more an employer can make you do.
Checking your temperature
Your employer may want to check your temperature before you can go into your workplace.
The Ontario Human Rights Commission says that temperature checks may be okay. These tests can be done using an infrared thermometer that checks your temperature by being pointed at your forehead. Your employer can probably do this because:
  • it's not very invasive, since nothing is inserted into your body, and
  • the risk of COVID-19 is serious.
Doing a swab test
Most employers will not be allowed to force you to take a swab test. This is because a swab test is a lot more invasive than a temperature check. To do the swab test for COVID-19, a swab is inserted deep into your nose.
Some employers, such as healthcare providers, may be allowed to do swab tests. This is because the risk of someone getting COVID-19 in those types of workplaces is greater than an employee's right to privacy.
What your employer can do with the information
If your employer takes any kind of test, they must do it in a way that respects your right to privacy. This means that they must collect as little information as possible. And they can share the information only with people who need to know.
Get more information and legal help
For more information about what tests your employer can make you take, contact the Ministry of Labour's Employment Standards Information Centre.
If you're not sure that your employer is following the law, get legal help.

 
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