Privacy Yes… but Now Is the Time for Employers to Manage H1N1

Last Wednesday, the The Office of the Privacy Commissioner of Canada, the Office of the Information and Privacy Commissioner for British Columbia and the Office of the Information and Privacy Commissioner of Alberta published two documents on privacy and management of the H1N1 pandemic. This post invites critical thought about the substance of these documents.

One document, for employers, is entitled Privacy in the Time of a Pandemic: Guidance for Organizations. The other, for employees, is entitled Privacy in the Time of a Pandemic: A Fact Sheet for Employees.

Both documents argue that private sector privacy laws “apply in the usual way” even though the World Health Organization has declared H1N1 to be a pandemic flu. They explain that in the event an emergency is declared under applicable emergency management legislation, public health officials may order employers to collect personal health information, and that private sector privacy legislation will not impede compliance with such orders.

Though we are not in a state of emergency, we are in the midst of a global influenza pandemic, and employers control access to the spaces at which a significant portion of the population regularly congregate. Never mind their statutory duty to “take every precaution reasonable in the circumstances for the protection of a worker,” don’t employers who are vigilant in ensuring their workplaces are free of H1N1 fulfill an important public health objective? Isn’t vigilance by employers today important to prevent a state of emergency tomorrow?

Take return-to-work screening, for example. Assume an employee is off sick and returns to the workplace after three days. In normal circumstances, an employer would have little reason to ask the employee about the condition that caused his or her sickness. This is the pre-emergency norm that is supported by the commissioners. Their employee fact sheet says:

If you become sick: We would generally discourage you from sharing your health status, including any diagnosis made by a physician, with your manager. Many employees will not be officially diagnosed by a physician, and will not themselves know if they have pandemic flu. In most cases, you need only say that you are sick and provide an approximate day for your return to work. However, given the ease of transmission of the pandemic flu, you may wish to volunteer information about your health status if you become ill, so that others in your workplace may be able to take additional precautions.

This statement reveals a good deal of ambivalence, but does suggest that employers should not screen for H1N1 in the “three-day off scenario” because such would not be “reasonably necessary” – the uniform standard for collection of personal information under privacy legislation.

Vigilant H1N1 management demands otherwise. The research on H1N1 contagiousness that has been accepted by the Public Health Agency of Canada indicates that people may remain contagious for approximately seven days after symptoms have started. In a time of pandemic, an employer faced with an early return from an undisclosed sickness should have the option of conducting an assessment to screen for H1N1.

The use of such workplace “screening tools” has been endorsed by the Ontario Ministry of Health and Long-term Care in its guide to developing a workplace health plan. The Ministry’s guide explains that screening involves the collection of personal information about symptoms and other information to support a medically valid assessment of infection/contagiousness. Of course, keeping the records (of due diligence) generated by such assessments secure is an unquestionable requirement. Ideally, assessments will be conducted by an occupational health nurse or physician.

While probing employees about the reasons for sickness is rarely “reasonably necessary” in ordinary times, employers who are responding to a pandemic can’t manage the risks associated with a specific contagious disease without asking employees questions about a specific contagious disease. I would hope the privacy commissioners were not suggesting that, short of an emergency, employers should be less than vigilant about keeping the workplace free from H1N1.

[This is my opinion alone and not the opinion of my employer or its clients.]