As businesses, organizations and government offices continue to gradually open up in Saskatchewan, the Office of the Saskatchewan Information and Privacy Commissioner has released an advisory with helpful guidance on questions, screening and testing by employers in Saskatchewan regarding COVID-19.
The following is an overview of some key points from the advisory for employers to consider with respect to employee screening:
1. Can you screen for COVID-19?
Employment legislation requires employers to provide a safe workplace within reasonable limits. However, how to best address this obligation in the context of COVID-19 involves many considerations which need to be assessed on a case-by-case basis. The advisory reminds employers that requiring employees to answer questions, be screened or be tested for COVID-19 is a fundamental issue which can be controversial and might result in court challenge.
2. What privacy legislation applies?
After employers have addressed the question of whether and how they should screen for COVID-19, it is critical to take privacy considerations into account. This starts with an assessment of what privacy laws apply to the employer. Generally speaking, and particularly where there are gaps in privacy legislation, it is important for employers to supplement their review of privacy legislation with a review of best practices for employee screening.
3. How should employee screening be structured?
The advisory outlines the following questions for employers to consider when structuring employee screening:
- What is the purpose of screening for COVID-19?
- How will employees be notified of the purpose of collection?
- What information will be collected?
- How will information be used?
- How will information be shared?
- Where will information be stored?
- How will information be secured?
- When will information be destroyed?
- When will information be reported?
- How will the screening be documented?
The Commissioner notes that employers may wish to seek legal counsel to determine whether and how to screen for COVID-19, and concludes that:
The principles are simple, establish the purpose, authority, and collect the least amount of information to meet the purpose, share it only with those who need-to-know, store it, keep it secure and destroy it when no longer needed. This is good advice whether an employer is subject to access and privacy legislation or not.
You can read the full advisory here.
The MLT Aikins team would be pleased to help your organization with any employee screening questions you may have.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.