Federal Transport Minister Marc Garneau announced earlier this month that Canada will require temperature screening for all passengers travelling to or from Canadian airports.
This follows the introduction of similar protocols in Italy, Poland, Chile, Mexico, China, South Korea and India. Passengers who have an elevated temperature must have a medical certificate explaining a medical or physical cause. Without it, passengers will be denied air travel for 14 days.
As B.C. moves from Phase 2 to Phase 3 of its restart plan, more businesses will open and more employees will return to work. For employers who are considering implementing temperature screenings to help manage COVID-19 risks, there are several occupational health and safety and privacy considerations to keep in mind.
in the workplace
Under occupational health and safety legislation in B.C., employers have an obligation to maintain the health and safety of all employees in the workplace. This includes implementing prevention measures to minimize the risk of COVID-19.
WorkSafeBC has indicated that at a minimum, employers must comply with the orders of health authorities and the guidance provided by the BC Centre for Disease Control. These orders include prohibiting workers who are displaying symptoms associated with COVID-19 from attending the workplace. Fever is a common symptom of COVID-19, but this does not automatically justify the use of thermometers and thermal cameras in the workplace.
Air Canada and WestJet have been requiring temperature checks for passengers since May, but there are concerns with the effectiveness of this measure. Canada’s Chief Public Health Officer, Dr. Teresa Tam, has said that temperature-taking is “not effective at all” in screening for COVID-19, and B.C.’s Provincial Health Officer, Dr. Bonnie Henry, also noted that temperature screening is “not particularly helpful.”
From a privacy perspective, body temperature is considered employee personal information that can be collected without consent so long as employees are notified of the collection, and the collection is justified by a reasonable purpose connected to employment management.
In other contexts, workplace safety has been found to be a “reasonable purpose” justifying surveillance and data collection, but the collection of personal information in the form of body temperatures in the name of safety may not be considered reasonable if it is ineffective in screening for COVID-19.
Employers should consider whether less intrusive methods can be implemented to achieve the same purpose.
Collection of temperature information from patrons and other members of the public should be done only with consent, though a business can likely rely on implied consent where clear notices are posted that temperature checks will be required to enter any facility.
Advice for employers
Any decision to implement temperature screenings will be carefully scrutinized, particularly in unionized workplaces. Employers considering such measures should carefully monitor public health advice and updates from WorkSafeBC and the privacy commissioner in this regard.
Employers may need to provide medical evidence to justify the use of thermal cameras or thermometers as reasonable and necessary, and that may prove challenging when Canada’s top doctor is questioning the effectiveness of temperature checks to manage the virus. There is a risk that the privacy commissioner and/or a labour arbitrator would find that employers are over-collecting personal information if they implement continuous temperature monitoring of all staff and visitors.
We recommend that employers:
•ensure that if temperature screening is implemented, it is treated as only part of a broader system for symptom-screening employees, particularly high-risk team members;
•continue to monitor health advisories related to the prevention of COVID-19 and the utility of various screening measures, including but not limited to thermal cameras and thermometers;
•provide express notice to anyone who will be subject to symptom-testing or monitoring (and consider obtaining express consent from third-party visitors);
•take reasonable steps during the collection process to ensure as much privacy as possible;
•establish reasonable precautions to protect the privacy and security of the information that is collected, including ensuring information is only collected and accessed by those who require it to perform their jobs;
•store the information collected for the minimum amount of time necessary and thereafter permanently and irrevocably destroy it; and
•consider the increased exposure risk to employees required to be present to manage the symptom-screening process and provided appropriate personal protective equipment.
This article is current to June 26, 2020. The article is for general information purposes only and does not constitute legal advice. •
Jennifer Russell is an employment, labour and human rights lawyer and a partner at Roper Greyell LLP; Janna Crown is an articled student at the law firm.