As indicated by the firm of Mathews, Dinsdale & Clark LLP, human rights legislation across Canada, places restrictions on an employer’s ability to require medical examinations or health testing. Generally, unless the examination or testing is reasonably required to assess the employee’s ability to work (e.g., a bona fide occupational requirement), compulsory testing of all employees through temperature checks would not be appropriate.
Human rights legislation across Canada also provides that everyone has a right to equal treatment in employment. COVID-19 affects persons of all ethnicities. Singling out employees because of their ethnicity for testing, leave or other virus-related actions could lead to discrimination charges. All policies should be enforced in a uniform and consistent way.
It is also important to consider individual employee rights and to guard against panic, discrimination and harassing behaviours or unnecessary actions such as testing. An employer should not send an individual employee home or ask them not to work because of concerns over COVID-19 unless the concerns are reasonable and consistent with the most recent advice from medical and Public Health officials.
However, it does not stop an employer who sees an employee exhibiting some symptoms or who has travelled outside of Canada, to meet privately with the employee and assess the situation by asking a couple of questions to evaluate if the employee is ill or has been exposed or come into contact with a person carrying the virus and recommend if the case warrants it, to go home to recover or self-isolate.
In addition, it would be reasonable under the circumstance to require employee disclosure of having contracted or been exposed to, COVID-19 to mitigate the risk of transmission. The disclosure must be kept confidential and be limited to the extent necessary to protect the health and safety of workers.
That said, in certain workplaces, temperature checks may be a reasonable screening mechanism in the circumstances. However, employers should be mindful of that any checks should be conducted using the least intrusive methods available (e.g., non-contact infrared thermometers vs. contact thermometers) and by a qualified individual to ensure that the test is conducted in a safe manner, such that there is no enhanced risk of employees being infected by each other or the test administrator.
Advance written notice to workers of the temperature check requirement would need to be provided, including the means by which the check will be conducted and that the purpose (i.e., to promote a safe workplace and help reduce the spread of COVID-19).
You would also need to know from public health what body temperatures are of concern and you should not keep records. If a person who test at or above a level that concerns a medical expert, yes, the person should not be allowed access to the workplace, but rather be discretely asked to leave the facility, to seek medical advice and keep you informed of the result to receive further directives about returning to work. You would need to pay these employees or put them on paid leave, if unable to work from home, while they wait for confirmation that there is a medical-related issue with COVID-19.
