In certain circumstances, an employer may demand that employees produce a medical certificate to justify a leave or to confirm they are cleared to work before allowing them to return to the workplace. But also in this instance, be mindful of exposure to human rights and privacy liabilities.
Canada has a patchwork of privacy laws and common law principles regulating how an employer can collect, use and disclose personal information – such as personal health information about its employees. All limit you to collecting only the personal information that’s reasonably necessary for the circumstances and to keep it only for as long as is reasonably necessary for those purposes.
Employers should consider the management of medical information when planning for a potential pandemic or outbreak. This issue includes the type of medical information an employer might collect from an employee and how you will use and disclose that information, and keep it secure. Clear direction to employees outlining why certain medical information is being collected will help employees understand why it is necessary and reasonable for the employer to collect, use and disclose their medical information in response to the situation.
Employers also need to consider what information they are entitled to require from employees and how they can use and disclose this information. Employers must consider what information they need in order to protect the health and safety of their workforce, and how they can achieve this protection in as minimally intrusive a manner as possible.
Employers should use and disclose the health information on a “need-to-know” basis only or as required by public health officials. Employers must carefully examine what information needs to be used or disclosed under the circumstances to fulfil their obligations to all of their employees, as well as to those to whom the employer provides services.