Sask. privacy commissioner releases advisory on workplace COVID-19 testing, screening

Saskatchewan's information and privacy commissioner says employers who plan to question, screen, or test their employees should first determine their purpose, then share as little as possible about results.

Ron Kruzeniski released an advisory Wednesday meant to help answer privacy questions of both employers and workers.

On Monday, the province began offering tests for people working away from home regardless of symptoms. People will still need to call 8-1-1 and receive a referral.

The province also plans to offer mobile testing in high-volume work settings, such as factories and industrial settings, but further details have not been released.

With the expansion of testing comes the question of whether workplaces should compel employees to be tested.

Kruzeniski said The Saskatchewan Employment Act requires employers to operate a safe workplace.

"Each employer will have to make a fundamental decision as to whether requiring all employees to answer questions, be screened, or be tested would make the workplace safer."

Kruzeniski said employers need to give "serious consideration" to whether questions or testing should be required. He said the issue of mandatory testing is "controversial" and could cause a legal challenge.

He said if an employer decides to ask questions, screen, or test it must be familiar with what privacy legislation may apply.

Kruzeniski said employers must also determine at the outset what the purpose of a test is.

"It is important that the employer define the purpose at this early stage and not expand after the fact, as that would be function creep and may not be authorized."

He said if testing goes ahead, employers should be "open and transparent" with the process and should not publically identify anyone who has tested positive, as it would be a privacy breach. He also said the employer should be open with the employee that it plans to share information about positive tests with public health.

Kruzeniski said the employer should only collect the necessary information and it should be stored in a secure place. 

The ethics of mandatory testing

Raywat Deonandan, an epidemiologist and associate professor at the University of Ottawa, said the COVID-19 pandemic is at a stage "where public health issues take precedence over individual rights issues."

"We can balance this as rights versus responsibilities. Yes, I have a right to my diseases. I have a right to my health. But you have a right to be safe from my ill health as well. And I have a responsibility to keep you safe. I think if it's framed as a responsibility issue then it's less of a problem for individual rights extremists."

Deonandan said "mandatory testing" might not be the right way to frame the issue.

"I would hope that the citizenry would be on board with wanting to know their health status and wanting to keep everybody else safe if it comes down to compelling testing. I think we may have to get to that point, if it means preventing the dreaded Second Wave nobody wants."

He said society must also better tackle that stigma faced by those who test positive.

"If you test positive you're stigmatized and your family is stigmatized your entire social circles are now put under a microscope. There's enormous burden put on individuals who test positive. This has to be handled carefully and with a degree of sensitivity that I don't think has been well thought out yet," Deonandan said.

Deonandan said the issue of requiring testing comes down to a "balance between individual liberty and public health responsibility."

"I can't imagine someone wanting to deny a test for themselves if it means likely exposing other people and causing death. We do impose restrictions on individual liberties for the betterment of society. It's a common thing. I can't drive above the speed limit because it's bad for other people. So there's a precedent for this," Deonandan said.