Human Rights: The Duty to Accommodate in Light of COVID-19
The Duty to Accommodate in COVID-19, Human Rights & Employment
Who this resource is for: Provincially regulated, non-unionized, non-profit employers in British Columbia.
Who created it: Copyright © Pacific Legal Education and Outreach, May 2020, with thanks to Clea Parfitt and others. Clea was called to the bar in May 1992 and Since October 1993, Clea has practiced privately, from 2000 onwards as a sole practitioner. She works primarily in the areas of human rights and employment law. The following is legal information not legal advice. If your organization has a specific question or situation it is dealing with, you are encouraged to seek legal advice as your legal obligations will depend on your specific circumstances.
Presented by Clea Parfitt
What are an employer’s duties pursuant to the Human Rights Code? What is the duty to accommodate?
Human rights legislation, in BC the Human Rights Code, prohibits discrimination. The Human Rights Code applies to non-profits, including in their roles as employers, service providers, and landlords.
Discrimination can occur when a decision or action with negative consequences was made because of the personal characteristic of a person. For example, not hiring someone because they were a woman, or might become pregnant, or have a disability would be discriminatory.
Discrimination can also occur when actions, decisions, policies or physical circumstances have a particularly negative impact on someone because of their personal characteristics. For example, using a building that is only accessible by stairs has a particularly negative impact on someone with a physical disability who cannot climb stairs.
Negative impact in this sense can be entirely unintentional. Avoiding this sort of discrimination requires organizations to think about the consequences of their actions and arrangements for people with different characteristics.
When we talk about personal characteristics we are talking about things like sex, age, disability, family status, sexual orientation, gender presentation, place of origin, race, religion, and criminal conviction. When we think about personal characteristics, it is important to recognize that more than one personal characteristic might be at play. For example, the person in question might be woman who is single parent of children and who also has responsibility for family members, perhaps overseas because of her place of origin.
The obligation not to discriminate is not absolute. There is a point were an action, decision, policy or physical set up which has a particularly negative impact in relation to one or more personal characteristics of a person would not be discrimination. However, the Human Rights Code requires organizations to do everything they can to avoid such negative consequences, to the point where going any further would be an undue hardship to the organization. This is a high standard which is difficult to meet.
The obligation to do everything an organization can to avoid negative consequences is often described as the duty to accommodate. It is a duty to modify workplace demands or the way a service is provided to reduce or eliminate negative consequences related to personal characteristics as much as possible.
The COVID-19 pandemic has not changed basic human rights. Non-profits as employers, service providers, and landlords have the same obligation they ever had not to discriminate; not to make negative decisions based on personal characteristics, and not to take actions, make decisions, have policies or establish physical circumstances that have particularly negative consequences for individuals because of their personal characteristics.
COVID-19 has, however, created a lot of new circumstances where an individual’s personal characteristics, including their health status, the health status of those around them, and their family obligations may affect how an organization’s actions, policies, decisions and physical set up impact them.
This means that when responding to changing circumstances around COVID-19, organizations have to keep in mind the personal characteristics of those they are interacting with to ensure that they are not having particularly negative impacts on people because of their personal characteristics, and that they are doing everything they can, to the point of undue hardship, to try to avoid those negative consequences.
The duty to avoid discrimination, to limit the harm an organization is doing, to take action, and to accommodate to the point of undue hardship requires a practical and common-sense approach, especially at this time when everyone is trying to muddle through unprecedented circumstances as well as they can. These duties require a practical common-sense approach from both sides. A person whose personal characteristics are leading to impact also has obligation to assist in the process of accommodating them, including by being flexible and reasonable, by not requiring a perfect accommodation and providing information when reasonably requested.
Webinar Q&A:
Q: We have applied for the Emergency Wage Subsidy and called our employees back to work - one employee does not want to come back because they are immunocompromised - they are threatening a human rights complaint what do I do?
A: On March 23, 2020 the BC government passed job protection legislation, Bill 16. Bill 16 added a new section to the Employment Standards Act to establish a COVID-19 related leave (s. 52.12).
Employees requesting leave are entitled to unpaid leave because: they have been diagnosed with COVID-19 and are following doctor’s orders, they are required by any order or governmental guideline to be in self-isolation or quarantine, the employer has directed them not to work because of concern for their exposure to others, they are caring for children that are not in school or daycare because of the closure of schools and daycares, or they are outside the country and cannot return. If requested by the employer, the employee must provide “reasonably sufficient proof” about their circumstances “as soon as practicable”. Employers must not request, and employees are not required to provide, medical notes. The new section entitles employees to leave from January 27, 2020 onwards.
Employers in British Columbia also have a duty under the Human Rights Code (the “Code”) to ensure that employees who are immunocompromised are not negatively impacted by the employer’s decisions and policies during the COVID-19 pandemic.
While it is important to note that the courts and the BC Human Rights Tribunal have yet to comment on whether COVID-19 amounts to a disability under the Code, the BC Human Rights Commissioner, Kasari Govender, has said that COVID-19 amounts to a disability under the Code due to the seriousness of this illness and the potential stigma that attaches to it. If so, under the Code an employer would not be entitled to discipline or terminate an employee who appears to have COVID-19, or who is at high risk to contract COVID-19 or have complications from COVID-19 and has been advised to stay home by medical professionals.
An employer’s duty to accommodate employees under the Code requires the employer to take every step possible to address the needs of those who require accommodation, unless those steps would lead to “undue hardship” for the employer. An employer may experience undue hardship in trying to accommodate an employee if it would create health and safety risks for others or would result in unmanageable costs for the employer.
During the COVID-19 pandemic, an employer has the duty to accommodate immunocompromised employees, including by allowing them to have flexible work arrangements in the workplace, by modifying their duties, by permitting them to work from home or by giving them unpaid leave if no other suitable arrangements can be made.
Finally, under the Worker’s Compensation Act, BC employees also have the right to refuse unsafe work if the employee has reasonable cause to believe that performing a job puts them at risk. An employee’s right to refuse work includes refusal based on the reasonable belief that they may be exposed to COVID-19 at work.
Q: Should I request proof when an employee says they have COVID-19 and asks for leave?
A: Section 52.12 of the Employment Standards Act which establishes a COVID-19 related leave, allows employers to ask employees for reasonably sufficient proof that they are unable to work for reasons related to COVID-19. The employer cannot specifically ask an employee to provide a medical note, and an employee is not required to provide a medical note in order to obtain job protected unpaid leave related to COVID-19.
Q: If an employee has proven they have COVID-19, can I tell all other employees?
A: Active diagnosed cases of COVID-19 are being closely monitored by provincial health authorities. If an employee contracts COVID-19 and has been actively at work, it is likely that contact tracing by health authorities will take place and will involve disclosure to other employees about the COVID-19 positive status of the employee in question. Individuals who have COVID-19 must isolate until the health authorities declare them to be COVID-19 free.
British Columbia privacy laws allow the sharing of information about COVID-19 positive results of employees if required to protect the safety of other workers. This would not be required if the person was not actively at work. Employers may only disclose information that is necessary to address the risk of COVID-19 spread in the workplace and should only provide information about employees if they have actually tested positive for COVID-19. Employers must inform the infected employee of information being shared about them. Because of the involvement of health authorities, it is unlikely that any employer will face questions of disclosure without their assistance.
Q: Would it be appropriate for an employer to get a doctor’s clearance with specific recommendations for accommodations for employees that are immunocompromised?
A: The Employment Standards Act says that an employer cannot ask for a doctor’s note from an employee. If available, information from a physician might be helpful in determining how to protect an immunocompromised employee. However, in view of the evolving information about the Coronavirus, it is not certain that a GP would have up to date information about how to best protect an immunocompromised employee.
Q: If an employee cannot be required to get a doctor’s note, what type of documentation should an employee provide to prove they cannot return to work?
A: The Employment Standards Act says that the employee may be asked to provide “reasonably sufficient proof” of their circumstances, when “practicable”. Determining what will meet this standard will require some flexibility and resourcefulness on both sides. Ongoing prescriptions or past medical reports may be of assistance, as may documentation relating to prior sick leaves.
In view of how open-ended this language is, employers may want to err on the side of caution and accept an employee’s statement about their medical condition if they are unable to obtain documentation at this time.
Failing to accept the person’s word, or wait to accommodate until something more definitive is “practicable” will expose employers to potential human rights claims on the basis that the employer’s position is direct adverse treatment related to disability, or is having a particularly negative effect because of disability, contrary to the Code. It is doubtful that any employer will be able to establish that it would have been an undue hardship to extend a statutory unpaid leave because they were unsatisfied with the information they were provided.
Q: If an employee is refusing to return to work on the basis that they live with someone that is immunocompromised, does it matter if they are a roommate or family? Does the relationship to the employee make a difference?
A: Both the Employment Standards Act and the Human Rights Code only operate in particular circumstances. In relation to the Code, if the employee is protecting a family member, then the requirement that employers not discriminate on the basis family status would assist the employee to refuse to return to work. If the immunocompromised person is a roommate, it would lawfornonprofits.ca | pacificlegaloutreach.com 4 likely be more difficult for the employee to refuse to return to work as no personal characteristic would be in play, and no person was under care such that the COVID-19 related leave provides of the ESA would apply.
Q: Is there a particular source for determining the requirements for social distancing in the workplace?
A: WorkPlaceBC has issued a guide, “Preventing exposure to COVID-19 in the workplace” which every employer should consult before returning employees to the workplace, and which should be reviewed at reasonable intervals after employees return or if issues arise. As well, different employer groups are working with WorkSafeBC to determine how to ensure that proper provisions are being made for sanitizing the workplace and ensuring social distancing in their sectors. Employers with specific issues or questions should contact WorkSafeBC for advice. Employees with concerns, can also report conditions believe to be unsafe to WorkSafeBC, requesting a health officer to visit and investigate. It is unclear how much capacity WorkSafeBC will have to provide advice, guidance or orders to individual workplaces at this time.
Q: How does an employer effectively get an employee to return to work and avoid a human rights complaint if they are not immunocompromised or living with an immunocompromised person?
A: An employee cannot simply refuse to return to work. Doing so is usually understood to have the legal meaning that the person has quit. However, at this time, employers must be extremely cautious that they have not inadvertently created a situation where a person’s personal characteristics are in play, or they have a legitimate reason for being afraid to return to work.
As well as immunocompromise, many other conditions make employees particularly at risk of serious complications from COVID-19, including kidney disease, heart disease, high blood pressure and diabetes. Further, some people will have reacted to the pandemic by developing psychological conditions including anxiety, depression, difficulty associating with people and agorophobia. These are all personal characteristics, and therefore may give rise to a protected reason not to return. Reasonable concerns about workplace set up will have a protective effect as well.
An employee declining to return should be treated with care, asked to explain their concerns, and to provide any documentation they can. To the extent possible, the employer should explore what limitations the employee has and what modifications to job duties or how or where duties are performed can be made. An employer should carefully document this exploration. In view of the statutory provisions for unpaid leave, the employer should be very careful to avoid being unduly suspicious or demanding before declining an unpaid leave. An employer should assume that it will not be easy to explain why granting a continuing unpaid leave would have been an undue hardship. This creates risk for employers if they decline such leaves, and employees later establish that a personal characteristic was in play.
Q: Is it the employer’s responsibility to pay employee benefits while employees are on leave during the COVID-19 pandemic?
A: The Employer’s Standards Act provides for unpaid leave but states that an employee on a COVID-19 related leave is entitled to obtain wage increases and benefits from their employer. lawfornonprofits.ca | pacificlegaloutreach.com 5 Can you refuse to provide service to someone who is symptomatic? This will depend entirely on the circumstances. Organizations must protect their employees from infection, but also have an obligation not to discriminate on the basis of disability, or perceived disability, to the greatest extent possible. Organizations must also have strong general protections in place, as mandated by WorkSafeBC. These sanitation and social distancing protections essentially assume that any person may be infectious. Depending on the circumstance, these protections may include some screening for symptoms.
Organizations should consider how they will handle persons with symptoms. They should be as flexible in doing so as possible, while also protecting their employees to the greatest extent possible. The test, if a complaint of discrimination is ever filed, is undue hardship: would it have been an undue hardship to provide the service? The well-being of employees will be a significant part of this calculation. When services are refused, it may be wise to document the circumstances, particularly if the person being refused protests. It is important to remember that some chronic conditions cause cough, and to be sensitive to the fact that people with these conditions may be singled out multiple times. Another consideration is how critical the service is to the person.
Additional Resources
Return to Work Letter Template
BC Human Rights Commission, "Message from the BC Human Rights Commission on COVID-19”
Contains a discussion of the application of human rights law to the COVID-19 pandemic. Talks about what employers and service providers should do. Good plain language advice.
WorkSafeBC, “What employers should do”
Starting place for considerations around returning employees to work.
WorkSafeBC, “Preventing exposure to COVID-19 in the workplace: A guide for employers”
Good basic set of questions to assess risks and controls in the workplace before returning staff to work.
WorkSafeBC, “Health and safety responsibilities when working from home”
Information about supports that should be in place for employees working from home.
Employment Standards Act, s. 52.12 COVID-19-related leave
New statutory language about unpaid leaves that must be permitted in relation to the COVID-19 pandemic.
Province of British Columbia, “Leaves of absence”
Information about the Employment Standards Act protections for leaves of absence.
Province of British Columbia, “Quitting, Getting Fired or Laid Off”
Information about layoffs, including that the layoffs must be agreed to by employees, and that the maximum period for layoffs has expanded to 16 weeks. This is a modification of the previous definition of “temporary layoff” in s. 1 of the Employment Standards Act which provided that temporary lay-offs can be up to 13 weeks.
Province of British Columbia, “COVID-19 and Tenancies”
Information about the temporary changes to the Residential Tenancies Act during the COVID-19 pandemic.
Lindsay Lyster and Melissa VanderHouwn, Moore Edgar Lyster LLP
“Managing a Non-profit Organization in a Pandemic: Your Legal Obligations and Best Employment Practices”