Contact tracing during COVID-19
Concept requires balance between privacy and employer responsibilities
By Pierre Chauvin
Since the start of the COVID-19 pandemic, contact tracing has emerged as one of the most efficient public health tools to stomp transmission.
But as businesses throughout the country resume in-office work, should employers get in the business of contact tracing? At what risks?
Breaking the chains of transmission
While the concept of contact tracing has been in the news since March, public health officials have used it for decades to control the spread of infectious diseases.
From sexually transmitted infections to measles and hepatitis A, public health workers routinely use contact tracing to stop the spread, according to Dr. Mayank Singal, a physician epidemiologist with the B.C. Centre for Disease Control.
In its most basic form, contact tracing retraces the people who were exposed to a communicable disease in an effort to isolate them and monitor for symptoms.
“We break the chains of transmission right there,” said Singal.
On top of the fact there’s no vaccine against COVID-19, people can spread the virus up to two days before showing symptoms if they show any symptoms at all.
But for contact tracing to be effective, it has to reach the majority of contacts in a short lapse of time.
In Ontario, 95 per cent of contacts of a test positive case are reached within 24 hours, according to Marianne Gervais, public health nurse and spokesperson for Ottawa Public Health.
In B.C., provincial health officer Dr. Bonnie Henry has warned that as businesses reopen and restrictions are lifted, the increased contact meant that contact tracing had to be done even more quickly to mitigate the increased risks.
That translates to notifying 75 per cent of an infected person’s contact within 48 to 72 hours of the positive test notification.
With that requirement, following public health guidelines — “big spaces, few faces,” as Dr. Henry likes to repeat — is especially important for nurses working on contact tracing.
In Ottawa, Gervais said that the number of contacts per person infected dropped from 20 to 3.9 since the start of the pandemic — usually household contacts, which simplifies contact tracing.
General duty of employers
With effective contact tracing being conducted by public health across the country and smartphone apps rolled out in Alberta, Ontario, and soon the rest of the country, should employers get in the business of contact tracing?
“Every employer — it doesn’t matter what jurisdiction — has an obligation to take every reasonable precaution for the health and safety of workers,” said Norm Keith, a lawyer at Fasken who specializes in occupational health and safety law in Toronto.
“That includes identifying and eliminating or reducing hazards known, or likely to occur, in the workplace.”
And COVID-19 has proven to be a potential hazard in the workplace in case of an outbreak.
While the risk of an infection can’t be fully eliminated, it can be greatly reduced.
“It’s in that second category of controlling COVID-19 as a workplace hazard that contact tracing is very meaningful and helpful,” said Keith.
“To me it’s fairly straightforward and responsible steps to take that may — if you don’t take it — be something you’re actually guilty of an offence for.”
For small businesses, contact tracing could be as simple as notifying employees who were in contact with a test-positive case or a presumptive case, and ensuring workers notify public health.
Privacy legislation and guidelines
But as soon as an employer collects and stores private information about its employees, privacy legislation has to be considered.
“Employers must be very clear to themselves on what they are doing and why they are doing it, and their legal authority,” said Caitlin Lemiski, director of policy at the B.C. Office of the Information and Privacy Commissioner (OIPC).
In other words, before jumping on contact tracing, employers must weigh its efficacy. And, if they decide to implement it, it must be part a wider policy.
In B.C., for example, food and drink establishments must keep customers contact information for 30 days to allow for speedy contact tracing.
But that doesn’t mean they can collect any sort of information — for example, your email address — and then use that information for unrelated purposes, such as adding it to a company e-newsletter.
In its guidance, the B.C. OIPC highlights a number of principles to follow: explain the purpose of collecting this information to customers; only collect the strict minimum (contact info of one member of a dining party); don’t use it for other purposes (analytics or subscribing to a newsletter); keep the information for a limited amount of time and secure the records.
With information now routinely stored on computers, collecting personal information comes with liabilities — employers have to keep the data secure and, in some jurisdictions, allow their employees to access it.
Lemiski pointed to the 2019 hacking of LifeLabs — where confidential personal information of millions of people in B.C. and Ontario was stolen — to show how quickly collecting information can become a liability.
Employers should follow their provincial privacy laws — B.C., Alberta and Quebec have enacted their own legislation to protect employees’ privacy in private organizations — and follow federal legislation for federally regulated industries.
As each provincial and federal body in charge of regulating privacy laws has put out varying amount of resources for companies, it results in a staggering amount of information.
But Lemiski said all those agencies are working together in the hope to publish joint guidelines.
“All the regulators across Canada are trying to take a unified approach as much as possible because we recognize that national employers don’t want to have to follow different rules in different jurisdictions,” she said.
Public health agencies weigh in
OHS Canada reached out to several provincial health departments across the country to understand their stances on employers’ involvement in contact tracing.
The responses vary widely from province to province. Yet, none had a definitive clear-cut stance on the issue.
B.C.’s Ministry of Health stresses that contact tracing “requires a confidential conversation between a public health expert and an individual who is potentially ill.”
“It is more appropriate for the act of contact tracing to be completed by public health experts,” said spokesperson Chris Shewchuk.
On the other hand, Ontario’s Ministry of Health and Long-Term Care underscores the importance of employers’ involvement.
“To support contact tracing, employers should have a system in place so information can be provided to their local public health unit about which people had close interactions with an affected worker,” said spokesperson Christian Hasse.
Quebec’s health ministry told OHS Canada that while contact tracing is the responsibility of regional public health units, employers are informed when a worker is tested positive and their co-operation will be required to complete the contact tracing.
And in Alberta, a spokesperson for Alberta Health said that they’re not recommending employers get into contact tracing, unless they’re asked to collaborate.
As businesses across the country adapt to this new reality, employers should remember that, similar to most health and safety precautions, COVID-19-specific protections vary from industry to industry.
Keith said his firm has been giving a lot of legal advice, especially for finer legal requirements.
One recurring question: do employers have to report an employee to public health?
“Legally the answer is no, but it’s important you tell the employee to do so,” he said.
Pierre Chauvin is a freelance writer in Victoria, B.C.