Many workers have expressed frustration about not being informed about potential exposures, being left out of contact tracing discussions and not participating in investigations into potential COVID-19 exposures. The lack of detail from employers about the exposure risks from people infected with COVID-19 identified among co-workers, contractors, sub-contractors, members of the public who may have entered the workplace and service recipients has justifiably increased fear and anxiety.
Are employers required to inform workers they may have had exposure to COVID-19?
In light of the precautionary principle and the general duty clauses of each jurisdiction, CUPE believes that the answer is yes and that the employer has due diligence requirements. There are, however, more details to consider, including the role of the health and safety committee and its terms of reference.
Various privacy and confidentiality legislation, both federal and provincial, prevents employers from disclosing personal medical information about workers and clients. Some workers compensation boards, such as in British Columbia, expressly prohibit notifying workers of exposure by the employer. There are limits to the protection of privacy, such as in compelling circumstances of health and safety. Disclosure of confidential and private information regarding a worker with COVID-19 to public health is permissible for contact tracing. Informing the workplace at large that a specific worker or service recipient has COVID-19 is generally a breach of privacy.
Under occupational health and safety laws and statutes, an employer must provide a healthy and safe workplace and inform workers about hazards they may be or have been exposed to at the workplace. These duties compel employers to inform a worker if they had potential exposure to COVID-19. The issue developed because contact tracing by public health can take days to complete. If the employer is aware of close contact between a worker and a person who has tested positive in the workplace, they must provide information and instruction to the exposed worker as to what steps to take. Depending on the type of contact, the employer must instruct the worker to self-monitor for symptoms, quarantine or self-isolate at home and await instructions from public heatlh.
What determines the direction employers must follow?
Most public health agencies have developed criteria for high and low risk contacts and the actions that are required. For high risk exposures, the Public Health Agency of Canada (PHAC) has guidelines to classify exposures. They recommend quarantine (or self-isolation as the case warrents) at home for 14 days from last exposure. For low-risk exposures, PHAC recommends self-monitoring for symptoms for 14 days following their last exposure.
What information can be shared with the health and safety committee and the Union?
Members of the health and safety committee and local executives have expressed frustration that their employers are refusing to share the contact tracing information provided to public health. Moreover, some employers are arbitrarily attributing nearly all positive cases among workers to “community transmission.”
Generally, health and safety committees receive information about incidents that happen in a workplace. They perform investigations so that they may develop recommendations to improve worker health and safety. This includes receiving occupational health and safety reports in the employer’s possession. Reports should include the number of COVID-19 positive cases among workers/clients and their locations (buildings, departments, wings, off-site locations, etc).
In some jurisdictions, the health and safety committee and the Union are entitled to receive notice from the employer of any claim of occupational illness with the workers compensation board (this would include COVID-19). Requirements related to filing a worker’s compensation claim vary by jurisdiction. There are different reporting and information collection requirements, be sure to verify the requirements of your jurisdiction.
- If employers are not forthcoming with the information when COVID-19-infected persons are identified among workers or arbitrarily attribute all workplace cases to community transmission without proper investigation, the health and safety committee members and the local can use the health and safety committee to address thes issues. Checklist tools have been created to help the health and safety committee and the Local identify and address problems in the COVID-19 response plan, in the investigation process or in the event of a COVID-19 infection.
It is crucial to ensure that information collection, storage, retention, communication and disposal complies with relevant privacy legislation. Failure to protect this information can lead to stigmatization, bullying and harassment, and an increase in mental health impacts on workers. These risks must be considered.
In some cases, we may never know for sure if workers contracted the disease at work or in the community. What’s important is that the employer investigates (with participation of the committee where legislated), and gives notice to low-risk and high-risk contacts, and provides notice to the Union and health and safety committee when there is workplace transmission.
The function and powers of the health and safety committee include reviewing the employer’s health and safety processes. The committee members can ask the employer to provide a redacted example of a contact tracing investigation they have conducted. With this example of their contact tracing investigation, the health and safety committee can formulate recommendations to improve any gaps identified in the process.
Other strategies to help locals track exposures of CUPE members and others:
1. If a CUPE member suspects they have been exposed to a person who has tested positive for COVID-19, they can fill out the workers compensation form and provide a copy to the Union and the employer, respecting jurisdictional requirements, privacy legislation, collective agreement obligations, workers compensation claim requirements, the potential for employers to access file information during workers compensation claim appeals, or other requirements, as applicable to the circumstances. The health and safety committee can also request a report from the employer on the number of compensation exposure forms or other reports that have been filled out since the last meeting. The health and safety committee can ask for a breakdown of which departments, buildings, classifications, etc. The information might assist the health and safety committee in determining if there are exposure “hot spots.”
2. If a CUPE member tests positive and suspects it resulted from workplace exposure, they should file a workers compensation form and provide a copy to the Union while respecting jurisdictional requirements, privacy legislation, collective agreement obligations, workers compensation claim requirements, the potential for employers to access file information during workers compensation claim appeals, or other requirements, as applicable to the circumstances.
 B. Robertson; BlogTO; January 13, 2021; https://www.blogto.com/city/2021/01/toronto-doctor-parties-covid-19-spread/