On October 29, 2009 the Office of the Privacy Commissioner of
Canada (OPC), together with the Privacy Commissioners' offices
of Alberta and British Columbia, published a guidance document
titled "Privacy in the Time of a Pandemic: Guidance for
Organizations." This guidance document was published in
response to inquiries from organizations regarding the application
of privacy laws to the management of the H1N1 pandemic in the
The federal privacy legislation, the Personal Information
Protection and Electronic Documents Act (PIPEDA) applies only
to information about employees of certain organizations –
namely a "work, undertaking or business that is within the
legislative authority of Parliament." This includes banks,
telecommunication companies and interprovincial transportation
companies such as airlines, shipping and rail carriers. Alberta,
British Columbia and Quebec have provincial private sector privacy
legislation that has been deemed "substantially similar"
to PIPEDA and that applies within those provinces instead of
PIPEDA. Unlike PIPEDA, each of the substantially similar provincial
Acts applies to the handling of all private sector
organizations' employee information within those provinces.
In the guidance document, the OPC confirms that as long as the
H1N1 pandemic has not been declared a public emergency, privacy
laws continue to apply normally. The OPC notes, however, that
should the situation change and a public emergency be declared,
public health legislation and certain emergency measures may permit
broader handling of personal information as required to protect
According to the guidance document, in non-emergency situations
such as the current pandemic, employers are not permitted to
collect more personal information from their employees than
necessary for the purpose of the collection. For example, if the
reason for collecting personal information about employees'
health is for contingency planning, an employer may track which
employees are absent from work due to illness; however, asking
whether they have been specifically diagnosed with the H1N1 flu
goes beyond the information required to meet the employer's
The guidance document says that employers should provide
employees with information on prevention rather than asking them
specific questions that go beyond the reasonable need for
information, such as whether a particular employee is at high risk
of contracting H1N1 or whether he or she has had the H1N1 vaccine.
Relevant information may include advising employees of the need for
certain high-risk groups to take extra precautions or providing
details about vaccination clinics.
Finally, the guidance document states that should an employee
tell a manager that he or she has H1N1, the manager should keep
that information private and simply tell others that the employee
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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