Despite many employees being laid off during the COVID-19 pandemic, some industries are seeing an increase in demand, which requires additional staffing to meet these demands.
Hiring amidst the COVID-19 pandemic, although necessary, presents a myriad of pre-hiring considerations for employers to ensure both the health and safety of their staff and the general public, while also remaining onside with human rights legislation and privacy considerations.
Employers that are presently hiring or considering hiring have likely been deemed as an essential service and therefore their continued operations are permissible at this time (with varying guidance, depending on the business). In consideration of this, it is important that these employers take heed of the guidance from Public Health, which may require additional considerations as part of their pre-employment inquiries in ensuring both the health and safety of staff and the general public.
With that said, employers must remain cognizant of the pre-employment questions that they pose, as they cannot ask questions which might suggest discrimination pursuant to one of the protected characteristics in The Human Rights Code (the “Code”). The Code states that employers cannot discriminate against applicants on a number of protected characteristics, including, for example:
To date, the Manitoba Human Rights Commission has not offered guidance as to whether it considers COVID-19 to be a disability pursuant to the Code. Human rights commissions in other Canadian jurisdictions have recently indicated that they are taking the position that COVID-19 constitutes a disability and differential treatment of employees with the virus (or are perceived to have the virus) will constitute impermissible discrimination. This would be in contrast to the case of the flu, for example, which is generally not considered to be a disability which triggers protection under human rights legislation. A human rights adjudicator has yet to rule on this issue. Accordingly, until an adjudicator has ruled on this issue, there is a risk that discriminatory treatment of individuals who have contracted COVID-19 would be deemed to be prohibited discrimination.
With this in mind, the prudent approach is for employers to ensure that their pre-employment inquiries relate to a bona fide occupational requirement of employment, and not a form of discrimination. This is commonly referred to as the “BFOR” test. To meet the BFOR test and avoid claims of potential discrimination, an employer must demonstrate that:
In the circumstances of COVID-19, depending on the industry and the specific position in issue, an employer will likely be able to demonstrate that the purpose of COVID-19 related inquiries is rationally connected to the safe performance of the job and the safety of the staff of the organization as a whole.
In light of the foregoing, here are a few examples of questions that employers may be justified in asking as a pre-employment inquiry:
The type of questions that an employer might pose will likely vary as additional guidance is provided from Public Health and the Manitoba government.
Employers must also ensure that these pre-employment questions are implemented in a manner that does not constitute indirect discrimination. For example, implementation of pre-employment questions that only apply to candidates of specific ethnic origin will constitute a violation of The Human Rights Code (in the absence of any specific evidence suggesting that the individual employee may have been exposed to COVID-19).
A best practice is to ask these questions only after an individual candidate has been selected (based on merit) and the employer has made a conditional offer of employment. This ensures that an employer is not making its initial hiring decision based on a potential discriminatory ground; rather, the issue becomes when will the new employee be able to start work.
In addition to the above-detailed considerations, it is important that employers also consider the privacy of applicants and of existing employees regarding the collection, use and disclosure of personal information (including personal health information) when asking COVID-19 related health questions.
In Manitoba, private sector, provincially regulated businesses are not subject to any privacy legislation regarding the collection, use and disclosure of employee personal information during the course of the employee-employer relationship. However, Manitoba, private sector, federally regulated businesses are subject to the Personal Information Protection and Electronic Documents Act (“PIPEDA”) regarding the collection, use and disclosure of employee personal information.
Regardless of what legislation may apply to applicants and employees, there are key privacy principles that ought to be adhered. A non-exhaustive list of key principles are listed below:
If you cannot rely on an exemption, an employer will need to provide notice and possibly obtain consent. The form of consent (express or implied), the sensitivity of the information at issue, and the reasonable expectations of the individual will need to be taken into account.
If faced with a request for the collection, use and disclosure of personal information pursuant to an order issued in the context of a public health emergency, employers should obtain the request in writing from the relevant public health authority. This request and the specific legislative authority cited should then be communicated to applicants and employees.
Co-author Erin Zorde has accepted an in-house position at Wellington-Altus Private Wealth, effective May 19, 2021. Anyone wishing to contact Erin should contact Lori Jantz, his former legal assistant at email@example.com
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