Written by David Doorey
There has been considerable debate within the employment and human rights community over the question of whether discrimination on the basis of COVID-19 amounts to discrimination on the basis of “disability”. On one hand, the answer may seem obvious: it is a virus that is killing thousands of people, we absolutely do not want people coming to work who have or believe they may have the virus, and there is a definite stigma associated with the virus. On the other hand, human rights tribunals have found in the past that common viruses, including the flu and the common cold, are not “disabilities”.
Whether COVID-19 is a “disability” or not matters greatly for employment law purposes. That’s because it is unlawful to discriminate against a worker with a disability, but not unlawful to discriminate against an employee with the flu or a cold. The distinction could mean the difference between an employee losing their job or not. Many (hopefully most) employers would not fire an employee who gets COVID-19, but people get fired all the time for absenteeism and many times they have good health-related reasons for not being at work. However, only if the illness is a disability does the worker have a human rights complaint which, if successful, could result in an order requiring the employer to re-hire the worker. If the worker is non-union and not covered by a “just cause” for dismissal rule in their contract, then she can be terminated for being sick (albeit she may be entitled to statutory or common law notice of termination).
Today the Ontario Human Rights Commission issued a statement indicating its opinion that discrimination in employment on the basis of COVID-19 constitutes discrimination on the basis of “disability” within the meaning of the Human Rights Code that would also trigger an employer’s duty to accommodate. The full statement in relation to employment discrimination is reproduced below. It is important to note that the views of the Commission are not necessarily the views that the Ontario Human Rights Tribunal will take if and when a case raising the issues comes before it. The Commission is a separate body tasked with educating and advocating for human rights in Ontario.
Do you agree with the OHRC’s reasoning? Should the duty to accommodate a worker with COVID-19 include a duty to take all measures possible to ensure that the worker does not suffer a loss of pay if they are quarantined? At what point does the employer’s duty to accommodate begin? When the worker tests positive? When the worker reports that they have a fever and dry cough? There are a lot if uncertain questions that will almost certainly arise in future litigation given that thousands if not millions of workers may be affected before this hell is over.
Here is the OHRC Statement on COVID-19 and Employment:
The OHRC’s policy position is that negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under the Code. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.
An employer should not send an individual employee home or ask them not to work because of concerns over COVID-19 unless the concerns are reasonable and consistent with the most recent advice from medical and Public Health officials. In unique circumstances, an employer might have other health and safety concerns that could amount to undue hardship. They would need to be able to show objective evidence to support such a claim.
Employer absenteeism policies must not negatively affect employees who cannot work in connection with COVID-19. An employer may not discipline or terminate an employee who is unable to come to work because medical or health officials have quarantined them or have advised them to self-isolate and stay home in connection with COVID-19.
An employee who has care-giving responsibilities should be accommodated to the point of undue hardship, which might include staying home. These care-giving responsibilities which relate to the Code ground of family status could include situations where another family member is ill or in self-isolation, or where their child’s school is closed due to COVID-19.
Employers should be sensitive to other factors such as any particular vulnerability an employee may have (for example, if they have a compromised immune system).
Employers should give employees flexible options, such as working remotely where feasible, as a good practice, and as an accommodation even if they are not currently sick but need to self-isolate or stay home due to other reasons related to COVID-19.
Consistent with the OHRC’s Policy on ableism and discrimination based on disability and its Policy position on medical documentation to be provided when a disability-related accommodation request is made, employersshould take requests for accommodation in good faith. Employers should be flexible and not overburden the health care system with requests for medical notes. Unnecessarily visiting medical offices increases further risk of exposure for everyone.
An employee who cannot work because of COVID-19 may be entitled to employee sick or disability leave and benefits offered by the employer or available under the Employment Standards Act or other government benefit programs.
At the same time, employers are entitled to expect that employees will continue to perform their work unless they have a legitimate reason why they cannot. If an employee is required to self-isolate for legitimate reasons, the employer is entitled to explore alternative options for how the employee may still continue to perform productive work for the employer (for example, telework). It is also not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.
Employers may have other obligations (for example under the Occupational Health and Safety Act). The OHRC encourages employers to consult the Ontario Ministry of Labour, Training and Skills Developmentwebsite for the most recent advice.
David Doorey, “The Ontario Human Rights Commissions Issues Statement on COVID-19 and Employment” Canadian Law of Work Forum (March 13 2020): https://lawofwork.ca/?p=11963
I am interested in knowing how the HRC developed these guidelines given that we know very little about how this disease spreads; we simply do not have the necessary empirical evidence to ground the policy. Is an employer going to risk accommodating an employee suspected of having this disease without actually knowing the extent of the problem? What rights do other workers in the workplace have not to work alongside someone who may be infected? Do healthcare workers now have an unfettered right to refuse work on the ground that the work is unsafe? Does the threshold for “undue hardship” get watered down given the seriousness of this pandemic? I believe this crisis does underscore the need to have some minimum standards with respect to sick pay and quarantine pay. Of course, Ford reversed the minimum of 2 paid sick days under the ESA. I actually negotiated quarantine pay into a collective agreement for a community health centre back in the 2000’s, never really thinking it would ever get triggered! Stay safe everyone.