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.
Privacy Implications
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.