July 13, 2020

McLennan Ross Update for Monday

By McLennan Ross Labour & Employment Team
As of July 6, 2020, we will only be publishing our blog twice a week, predominantly on Mondays and Thursdays. 
What we are seeing
  • The Government of Ontario announced on July 10, 2020 that it would be providing details regarding Stage 3 of its reopening plan on July 13, 2020. Most of Ontario moved to Stage 2 on Jun 19, 2020 with the Greater Toronto Area being delayed by 5 days. Thus far, the only guidance from the Ontario government has been to state generally that Stage 3 would allow for the reopening of most remaining workplaces and community spaces, albeit with the gradual lifting of restrictions, and for workplace safety guidance to remain in place and available. 
  • To date, the Government of Alberta has provided an estimate of when Alberta will move to Stage 3 of its relaunch strategy. A review of Alberta's relaunch plan document suggests that a move to Stage 3 will not occur in the immediate future unless there are some modifications of the plan. Currently, if the plan is followed, a move to Stage 3 will mean that masks are unnecessary and there is no longer any need for the isolation and quarantine measures that have been in place since the declaration of the public health state of emergency in March 2020.

What we are hearing
  • Alberta's relaunch strategy also states that public masks are unnecessary in Stage 3. It is doubtful that such advice will be an express part of Alberta's or Ontario's Stage 3 plans, although it is likely each province will leave the matter up to local governments. 
  • On June 30, 2020, the City of Toronto passed a bylaw requiring masks or face coverings in all enclosed public places as of July 7, 2020. The measure followed advice from Toronto's Medical Officer of Health for Council to legislate for the protection of the health, safety, and well-being of persons in Toronto and enact the temporary bylaw to prevent a resurgence of COVID-19 cases. 
  • On July 8, 2020, Mayor Nenshi of Calgary indicated that he would consider bringing forward a motion to implement a similar bylaw if Calgarians were not voluntarily wearing masks in public and when on public transit. There has been some discussion in Edmonton regarding enacting a similar bylaw, but with less express support. 
  • It is anticipated that both cities will monitor the number of new cases and whether the public follows the general social distancing and hygiene directions of the provincial government. If there is no significant spike in cases, a mask bylaw will prove necessary.

What we are saying
  • On July 9, 2020, the Privacy Commissioner of Alberta released a 66-page Privacy Impact Assessment Review Report regarding the ALberta Health ABTraceTogether app. 
  • The Report found generally that as the use of the app was largely voluntary, the person using the app was effectively choosing to provide their health and personal information and therefore such individual control addressed most privacy concerns. The Commissioner did find that when first introduced, there was a real concern about the possible secondary use of personal information collected by the app, such as quarantine enforcement. In response to that concern, Alberta Health developed a policy that prohibited the use of that information for such other purposes. 
  • Of note for employers was that the Commissioner stated that for employees in the public, health, and private sectors who are issued devices by their employer or use their own devices for work purposes, the risk mitigation Alberta Health has put in place is insufficient. Employers have legal obligations under Alberta's Personal Information Protection Act, as well as other applicable privacy legislation, to make reasonable security arrangements to protect health and personal information in their custody or control. The risks represent a potential contravention of Alberta's privacy laws by regulated entities if they were to allow employees or affiliates to run the app on enterprise-issued devices that store or make other health or personal information accessible. 
  • Based on this assessment, we believe that it would be a violation of the Personal Information Protection Act for an employer to mandate that its employees download and use the app.

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