HR Q&A: can an employer request proof of a negative COVID test?

The most common question we have been receiving from our clients and other employers across Canada, is ‘Can an employer request proof of a negative COVID test?’

The answer will depend on where the employer is located: what municipality, city, or province. We suggest you refer to Ottawa Public Health, Toronto Public Health, Vancouver Coastal Health, or other governing bodies wherever you may be located. In general, the answer is no, as an employer you cannot ask for a test result. First of all, the employee is not likely to have received any proof of a negative COVID test, other than verbally in-person or over the phone. The rationale behind this is that Public Health would be extremely overloaded if they had to give medical notes to every person who gets tested, which would weigh down our already burdened healthcare system. Further, there’s the slippery slope around discrimination, and the right to protect human rights and privacy. As a result, an employer cannot ask for proof of any kind of medical illness. The same rules apply for a COVID-19 test. The employer can, however, ask if the employee has tested positive if they were in the physical workplace. That is perfectly reasonable because the employer is in a position where they have to do contact tracing to stop the potential spread of COVID. In this case, if the employee tested positive and was on-site within the last 14 days then they would certainly have the right to know they tested positive. But they still cannot ask for physical proof because it couldn't be provided (in written form). If you suspect that an employee is sick or they call in sick, you would give them instructions to call Telehealth or their provincial counterpart. Another option would be to contact their healthcare provider or go to an assessment center and get tested. When they get the test result you can ask them the date they were tested on or the date they got their results, but that would be all you could confirm.

To Recap

An employer can recommend that an employee get tested but they cannot require that an employee get tested. An employer can expect to know if they tested positive, if they were in the office in the last 14 days but they can’t get proof. If the employee disclosed that they tested negative, you may wish to ask for the date of the test. At the end of the day, this is really a trust base system where an employer has to put trust into their employee to provide the right information. As a precaution, before they return to the office you would want to have them fill out a self-assessment questionnaire. This gives you a little comfort that the onus is on the employee to ascertain that they have no symptoms and that they feel well and can return to work.

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