Can employers ask employees to produce a negative COVID-19 test before returning to work if they had previously tested positive? Ontario

[vickyp]

#102760

Forum: Community

[vickyp]

#103195

Yes, but only as long as you require all employees to get tested before letting them come to work. Notice I didn’t say “return to work.” The problem: Human rights commissions have made it clear that having or being perceived to have COVID-19 is a disability. So, testing an employee who had COVID-19 but not testing another employee who didn’t have COVID-19 is differential treatment that could be considered disability discrimination. On the other hand, if everybody is tested for COVID-19, it’s cool to test the employee who had it before. Hope that answers your Q. Glenn

[vickyp]

#103196

Glenn, so if a worker in a safety sensitive position got seriously injured at work and had time off and is required by his employer to produce a fit to return to work note from a doctor before he /she can return to work does than means a worker in a safety sensitive position with a lesser injury and had no time off work must also be required to produce a fit to return to work note from a doctor as well’ Note: In some cases the employee with a serious injury also fit the description as a person with a disability.

[vickyp]

#103197

The employer would be entitled to require both employees to prove they’re fit for duty. True, the serious injury could be and probably would be deemed a disability. The difference is that unlike the serious injury may impair fitness for work, having had COVID-19 doesn’t impair fitness for work after recovery, particularly if the employee is returning after following the Health Canada quarantine/self-isolation guidelines. The only reason to require THAT employee to get a negative test without requiring the same of other employees who didn’t have COVID-19 is the perception of disability. At least that’s my interpretation. It’s impossible to say how a court, arbitrator or human right tribunal would rule in an actual case.

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