Covid-19: Temperature Screening of Crew Members
A frequent question I've been asked recently is whether shipowners are permitted to screen their crew for Covid-19 symptoms, and in particular, higher than normal temperatures. So is doing so legal?
In summary, temperature screening is an acceptable method for mitigating risk at the workplace, however, because the temperature records constitute “personal information” employers need to be aware of the privacy law implications of doing so. In addition, because an employee’s ability to attend work is conditional on a medical procedure – i.e. the temperature screening - there are human rights considerations.
Shipowners, as a federally regulated employers, are subject to the Personal Information Protection and Electronic Documents Act, SC 2000, c 5. That legislation allows employers to collect, use and disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances (subsection 5(3)). Subject to limited exceptions, organizations are required to obtain the consent of the individual for the collection, use, or disclosure of their personal information. Once consent is obtained, organizations can use personal information for the purpose it was collected subject to the requirement to safeguard the personal information.
In practical terms, employers should ask for the consent of the employee prior to taking their temperature, the testing should occur in private to ensure that the results cannot be overheard by other persons, and the results should be held in strictest confidence. For more information on an employer's privacy obligations see Schedule 1 of the Personal Information Protection and Electronic Documents Act - https://laws-lois.justice.gc.ca/eng/acts/p-8.6/page-11.html.
Human Rights Implications
In addition, the Canadian Human Rights Act, RSC 1985, c H-6 applies to shipowners. That legislation provides that medical examinations or health-related tests like temperature testing are generally acceptable only if the testing or examination is reasonably necessary to confirm the employees’ ability to perform a bona fide occupational requirement of the role. Sections 7 and 15 provides that:
7 It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
15 (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;
Because medical disability is a prohibited ground of discrimination, shipowners need to ensure that their screening procedures do not unduly prejudice individuals with higher temperatures caused by some condition other than Covid-19. To that end, the temperature threshold for screening should be supported by medical evidence and applied objectively and consistently. Although not binding on federal employers, the Ontario Human Rights Commission’s position is that temperature screening is permissible and it has commented in its Covid-19 FAQ as follows:
10. Can my employer make me do a medical test for COVID-19 like take my temperature as a condition for working?
The OHRC’s policy position is that medical assessments to verify or determine an employee’s fitness to perform on the job duties may be permissible in these circumstances under the Code. However, information on medical tests may have an adverse impact on employees with other disabilities. Employers should only get information from medical testing that is reasonably necessary to the employee’s fitness to perform on the job and any restrictions that may limit this ability, while excluding information that may identify a disability. Employees and employers also have rights and obligations for workers’ health and safety on the job under the Occupational Health and Safety Act. Visit the Ontario Ministry of Labour, Training and Skills Development website for more information, including how to contact the Ministry.
Source: http://www.ohrc.on.ca/en/news_centre/covid-19-and-ontario%E2%80%99s-human-rights-code-%E2%80%93-questions-and-answers. Finally, it's important to note that shipowners have a corresponding obligation to ensure that their workplaces are safe for all persons pursuant to section 124 of Canada Labour Code, RSC 1985, c L-2. That obligation needs to be balances with the obligations above.