The BC Office of the Human Rights Commissioner recently released two publications that deal with COVID-19 issues relating to employment. One is a statement from the Commissioner and the other addresses frequently asked questions.
The provincial government established the Office of the Human Rights Commissioner in 2019. Its role focuses on investigation and education, as opposed to BC’s Human Rights Tribunal which hears and decides complaints relating to human rights.
The Commissioner’s statement says the following with respect to COVID-19:
In this time of rapidly changing circumstances, neither the Human Rights Tribunal nor the courts have had time to weigh in on whether COVID-19 amounts to a disability. However, in my view as BC’s Human Rights Commissioner, it does. The seriousness of this illness – and the potential stigma that attaches to it – make it more akin to the legal protections that apply to HIV than to the common cold. Therefore, discrimination on the basis of someone having (or appearing to have) COVID-19, is prohibited under the [Human Rights Code] except where the duty bearer [e.g. an employer] can justify such treatment (for example, to prohibit or diminish the transmission of the virus).
Apart from COVID-19 considerations, employers are not permitted to terminate employees on the basis of disability.
Though not legally binding, the Commissioner’s statement provides guidance to employers and could be persuasive for the Human Rights Tribunal and the courts. As such, employers should exercise caution if considering terminating an employee because the employee has, or the employer believes the employee has, COVID-19–which the Commissioner says is unlawful, in her opinion. Such a termination could also run contrary to the COVID-19 related job protected leave that the provincial government introduced last month, and about which we advised you here.
The Commissioner’s statement makes the following recommendations for employers:
- Employers cannot make hiring, discipline or firing decisions on the basis of whether a person has or appears to have COVID-19. However, it is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.
- Employers are required to accommodate an employee who may have COVID-19 or is considered particularly vulnerable to the virus. Such accommodation may include providing for flexible work-from-home arrangements, delaying start times for new employees or providing sick leave.
- Employers may be required to accommodate employees with increased child care obligations due to the pandemic, or employees who are required to care for sick family members. Accommodations may include allowing for flexible work hours, working from home or taking paid leave time.
- Employer absenteeism policies must not negatively affect employees who cannot work in connection with COVID-19.
- Employers cannot make hiring, discipline or firing decisions on the basis of whether a person comes from (or appears to come from) a COVID-19 hotspot.
- Employers are not permitted to require sick notes from employees during this time.
- Employers with paid sick leave policies should apply them as needed and, although not obligated to do so by law, employers without sick leave provisions should consider providing paid leave to all employees who are sick or have care giving responsibilities.
- Employers should also consider providing security of employment and/or paid leave to those employees who are unable to work due to workplace closures.
- Employers are entitled to expect that employees will continue to perform their work unless they have a legitimate reason for why they cannot, including current public health guidance to socially distance or self-isolate. If an employee is required to self-isolate, the employer is required to explore alternative options for how the employee may still continue to perform productive work for the employer (for example, telework) unless the employee is unable to work due to illness.
There is information for employees in the FAQs that may be of interest to employers, including that an employer may not discipline or terminate an employee who:
- has, or the employer perceives has, COVID-19; or
- is unable to come to work because officials have quarantined the employee or have advised the employee to stay at home in self-isolation related to COVID-19.
Employers with any questions should contact Clark Wilson LLP’s lawyers in the Employment & Labour Group for more information.