On April 7, 2020, the BC Human Rights Commissioner, Kasari Govender, released a policy statement intended to provide guidance to employers, landlords, service providers, and individuals about how to ensure human rights are protected and balanced against urgent public health priorities.
The Office of the Human Rights Commissioner has the roles of education, research, advocacy, inquiry and monitoring to promote and address human rights. It is not a law making or decision-making body, so the statements by the Commissioner are not legally binding on employers. However, the statements provide some guidance for employers about how current issues due to the pandemic should be addressed.
The Commissioner has stated that it is paramount that public and private sector organizations recognize their human rights obligations and seriously consider the potential disproportionate impact that COVID-19 will have on vulnerable or marginalized groups they employ, house, or serve. She also commented that it is important that employers and other service providers recognize that vulnerable and marginalized groups will face barriers that may disproportionately impact their health and economic well-being during this pandemic.
The Human Rights Tribunal and the courts have not yet determined in any adjudicated decisions whether illness due to COVID-19 is a disability. However, the Commissioner takes the position that COVID–19 is a disability for the purposes of the B.C. Human Right Code, and as a result falls under that head of protection from discrimination. Accordingly, employers are prohibited from discriminating against employees regarding employment, or their terms and conditions of employment, because they have, or are perceived to have, COVID-19.
The Commissioner also noted that COVID–19 impacts other prohibited grounds of discrimination in employment such as ancestry and place of origin and family status. She commented that an employer cannot discriminate against a person because their nationality or place of origin (or perceived nationality or place of origin) is a COVID-19 high-risk country such as Italy or China. In addition, she highlighted that COVID–19 has had a significant impact on family obligations and warned that in order to avoid discrimination on the basis of family status, employers must consider their legal obligations to accommodate employees who must remain home to care for sick family members or children while schools remain closed due to the COVID–19 pandemic.
The Commissioner made it clear that in making decisions regarding employee issues, employers must balance the human rights of the employee against the health and safety of the other employees and the public, but specifically stated that any decision which limits human rights and civil liberties must be evidence based, proportionate to the public health risk, transparent and temporary.
The Commissioner’s policy statement provides a number of guidelines specifically for employers, including the following:
- Employers cannot make hiring, firing or disciplinary decisions based on 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 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 such as China or Italy.
- Employer absenteeism policies must not negatively affect employees who cannot work in connection with COVID–19.
- Employers are required to accommodate persons who may have COVID–19 up to the point of undue hardship including taking all necessary precautions to stop the spread of the virus in the workplace.
- Employers must accommodate employees who are considered particularly vulnerable to COVID-19, such as elderly or immune compromised people. Special consideration or flexibility may be required to help vulnerable employees, unless doing so would amount to undue hardship.
- Employers are not permitted to require sick notes from employees during this time because unnecessarily visiting medical offices increases further risk of exposure to the public.
- Employers are entitled to expect that employees will continue to perform their work unless they have a legitimate reason not to. If public health authorities require that an employee self-isolate, then the employer is required to find alternative options for the employee to continue providing work.
Actual legal rights and obligations will be determined on a case by case basis and we recommend employers seek legal advice. In particular, whether there is a duty to accommodate and what the scope of that duty may be in any particular circumstance, is something which employers must carefully consider. In some circumstances it may not be possible for an employer to accommodate, but each situation must be assessed on its individual facts.
The full policy statement can be found here: https://bchumanrights.ca/wp-content/uploads/2020/03/BC-OHRC_COVID19_Policy-V5.pdf