Employers have increased concerns about what their employees do outside of the workplace because of the COVID-19 pandemic. It is a fact that contact with others outside of work can increase the risk of bringing coronavirus into the workplace and infecting others there. This may be especially relevant during the summer months. It can be very hard to ignore the allure of fresh air, sunshine and company from friends and family that one may not have seen for weeks. This phenomenon could be observed a few weeks ago when thousands of people attended Trinity-Bellwoods Park in Toronto because the weather was nice and they wanted to socialize.
The bottom line is that employers have to play a balancing act in order to try to navigate this unprecedented situation. On one hand, there is the concern for employee privacy. However, on the other hand, employers are obligated under occupational health and safety regulations to ensure that their workplaces are safe. An employer’s concern about where their employees have been during their personal time is a valid one. In fact, other employees may expect employers to advocate for their safety and to ask employees certain questions about their personal time. The employer could be exposed to liability if they fail to address a genuine concern.
We believe that it is now up to employers to ask some questions of their employees related to their personal life that before the pandemic they would not have asked. These questions should not be blanket generalizations nor should employers be asking employees to provide a detailed list of exactly what the employee did or whom they saw outside of work. Employers must be careful to avoid any questions of employees that could be discriminatory or unduly intrusive. For instance, the employer should avoid asking a certain group questions about their private life if they are asking those questions simply because the employees are part of that group. The employer should only make inquiries if there are reasonable grounds to do so. For instance, it is reasonable to ask questions directed to an employee if the employee has been around an outbreak or COVID-19 hotspot. However, the employer should avoid setting on a “fishing expedition” into the employee’s life. For instance, broad questions about what the employee did that weekend and how many people they saw would not be reasonable and would likely constitute an unreasonable invasion into the employee’s privacy.
The COVID-19 pandemic continues to raise new challenges in the area of employment law. When dealing with workplace concerns, employers should remember it will be their duty to balance interests that compete not only with the company or business as a whole but between fellow co-workers as well.