How employers should handle COVID disclosure

Employers must strike balance between worker’s privacy, keeping workforce safe

Someone in your workplace tests positive for COVID — will you be told?

It depends.

In Hamilton, you’re all but guaranteed to find out if there’s an outbreak in your workplace — meaning evidence of transmission between at least two people — since public health posts outbreaks online, but a single case of COVID is another matter. Public health won’t disclose which businesses have had single cases, and the legal requirements for an employer to inform staff are up for interpretation.

The better question: should an employer disclose?

Ed Canning, an employment lawyer and partner at Ross & McBride LLP who is also a contributing columnist with The Spectator, recommends employers be “rational” and “reasonable” when weighing whether or not to inform employees of a positive COVID case.

“If somebody (an employee with COVID) said: ‘I was only in to work one day, I was in for five minutes to pick up my files, I walked there with my mask on and the only person I talked to was my assistant and I was eight feet away and then I left,’ well then why tell everyone?” he said. “It’s got to be rational.”

Employers are in a tricky spot, however, having to balance their obligations under the Occupational Health and Safety Act (OHSA) with privacy legislation.

But Canning says the obligations aren’t necessarily mutually exclusive; the OHSA requires employers to protect their staff and the provincial privacy commission suggests employers can disclose health information if there are reasonable grounds to believe doing so could eliminate or reduce significant risk of serious harm.

Even with the risk of violating privacy, Ontario’s Ministry of Labour, Training and Skills Development is pretty clear about employer obligations: “If it was reported to them, they must report the case to their employees,” a ministry spokesperson said.

The ministry says employers “must” let workers know if they were potentially exposed at work and “should” share the date, time and location of the potential exposure. They should not share information that could identify the COVIDpositive person, the ministry said.

Hamilton public health, meanwhile, when asked about workplace disclosure, said: “If they are determined to be a close contact of a case, Hamilton Public Health Services will inform the employee.”

But at times, public health has been overwhelmed and unable to conduct timely contact tracing. That means people might have to wait days to find out about exposure unless the person who tested positive, or someone else, such as a boss, tells them.

Some workplaces go one step further: they disclose cases to the public.

Since the beginning of the pandemic, stores such as Fortinos, Metro, Food Basics, Shoppers Drug Mart and others have publicly disclosed cases when workers test positive. McMaster University and Mohawk College also disclose when they have cases, as do schools — a provincial requirement.

But Canning says vague disclosure risk can cause unnecessary stress. For instance, if an employer tells an office of dozens of people that someone tested positive — but doesn’t provide details — workers might worry they were potentially exposed, when they weren’t.

Still, Canning thinks employers should err on the side of disclosure. They owe it to their employees.