Can employers ask workers if they attended a protest?

Employers have an obligation and a vested interest in providing a safe and healthy work environment

Can employers ask workers if they attended a protest?
Stuart Rudner

by Stuart Rudner and Ayesha Adamjee

How much is your employer entitled to know about how you spend your time away from work? Is the answer different during the COVID-19 pandemic? What if the off-duty conduct could create a risk of spreading the coronavirus?

In light of concerns about the spread of the coronavirus, can employers ask if employees have been observing the physical distancing recommendations? What about asking about specific events, such as a public protest?

In recent weeks, activists around the world have organized to protest centuries of racial injustice across North America. While everyone in Canada has a right to peaceful assembly, the issue is complicated by the global COVID-19 crisis.

Employers have both an obligation and a vested interest in providing a safe and healthy work environment for their staff. Not only do provincial health and safety regulations impose legal duties on employers to ensure safe working conditions, many employers are driven by the increased productivity and employee satisfaction that healthy working environments are known to foster. Especially given the heightened health and safety precautions that many of us are undertaking during the lockdown, it might worry all members of a workplace to be exposed to someone who has recently been in a large crowd without taking proper precautions. So it is understandable that employers will have a legitimate interest in knowing about the behaviour of employees that could put others at risk.

However, it is important to remember that employees also have privacy rights that prevent employers from requiring that employees answer questions such as “What did you all do over the weekend?” or “Did you attend the protest on Saturday?”

Furthermore, if an employee were to be penalized for participating in a race-related rally, for example, it could raise human rights concerns.

The right to privacy must be balanced against the duty to provide a safe workplace, and in these unusual and dangerous times, it is likely that employers will be given more leeway as they attempt to ensure that their workplace is safe.

For instance, when Trinity Bellwoods park in Toronto was swarmed by crowds a few weeks ago, it would make sense for an employer to want to know if any of their staff was in attendance on that day. However, simply being present in a crowd is not sufficient grounds for an employer to ask an employee to stay home. If an employee was practicing social distancing and wearing the appropriate protective gear, there is no reason that attending a protest or going to a park would be any more dangerous than their most recent trip to the grocery store.

Employers must be aware that they do not have the inherent right to govern what their employees do on their own time. While asking questions such as these during the pandemic might be tempting and seem appropriate, employers could be breaching privacy regulations if they question employees’ use of their own time.

Intrusion upon seclusion
We can glean more information from the 2012 case of Jones v Tsige, in which the Ontario Court of Appeal introduced a new tort, “inclusion upon seclusion”, which provides employees with an avenue to seek redress if their privacy rights are infringed upon. Employers can look to the following description of the tort to guide their interactions with employees:

“The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and, third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.”

The use of the “reasonable person” standard is key here. In some cases, this means that it would be acceptable for an employer to question the actions of their employees; for example, if they put others at the company at risk of harm. However, this must be approached with caution and respect for employee privacy.

Furthermore, employers should be cautious in deciding who to question. It is safe to say that if an employer asked only their racialized employees if they attended a protest, or accessed personal employee files to monitor their actions, their conduct could be considered “reckless” and invasive. The key is to remember to be reasonable in any conversation with employees and not make assumptions or jump to any conclusions.

For employees who do not work remotely, it is important to remember that their health and safety is intimately connected with that of their coworkers. Putting themselves at risk has a high chance of endangering those they work with, raising the stakes attached to their choices. This is especially true during the pandemic, but should also be kept in mind when social distancing measures are eased. As long as people are being safe, there is no obligation to inform their employer about what they do outside of work hours. If they work remotely, this obligation is limited even further.

If employers take one thing away from this article, it is that employee privacy is heavily protected and must be respected at all times, even during a pandemic. While it is important to protect the health and safety of employees, it is crucial that they do so carefully, while maintaining professional conduct at all times. It is also important to avoid assumptions, especially those based on stereotypes and prejudice. That said, legitimate efforts to promote workplace safety can justify an infringement on the privacy of an employee.

Ayesha Adamjee is a summer student at Rudner Law in Toronto.

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