Would an employee who has COVID-19 have a ‘disability’ and be protected under BC Human Rights Act?
The BC Human Rights Code provides that an employer must not refuse to employ, refuse to continue to employ or discriminate against an employee because of their:
- Place of origin
- Political belief
- Marital status
- Family status
- Physical or mental disability
- Sexual orientation
- Gender identity or expression,
- Age, or
- Criminal conviction or summary conviction that is unrelated to their employment.
COVID-19 does not yet clearly fit within one of the above listed characteristics. The BC Human Rights Tribunal has not yet published any decisions arising out of discrimination allegations concerning COVID-19. It may be the case that COVID-19 is a “disability.” In Li v Aluma Systems Inc. et al, 2014 BCHRT 270, the Tribunal decided that that determining whether a person has a physical disability can be informed by the following:
“… the concept of disability, for human rights purposes, has generally been held to involve a physiological state that is involuntary and has a degree of severity, permanence and/or persistence. Generally, the disability impairs a person’s ability to carry out the normal functions of life to some degree and poses an impediment to a person’s participation in the economic or other areas of life which the Code seeks to protect against. It is a case-by-case analysis.”
Considering the definition of “physical disability” in a human rights context, it may be the case that employees who are infected and exhibiting symptoms for a short period of time would not be considered to have a physical disability. However, given what information we do know about COVID-19—some individuals suffer long-lasting and very severe symptoms.
Therefore, given the fact that an employer may not know how a given employee is going to respond to COVID-19, if they anticipate that they have contracted the disease, it is advisable for employers to fulfill their duty to accommodate these employees.
Fulfilling the duty to accommodate is fact-specific and dependent on the nature of the employment. For example, an employee who works in an office may simply require an accommodation to work from home and be provided with a laptop.
Employers must be live to other human rights related issues that arise when an employee may have been exposed to or been diagnosed with COVID-19. In particular, it is important that employers do not discriminate based on race, ancestry or place of origin. For example, an employer may require an employee to work from home for 14 days if they have been travelling abroad, but an employer may not require an employee to work from home simply because they are a particular nationality. In the same vein, employers may need to respond to insensitive and potentially discriminatory conduct occurring in the workplace, directed at employees who may have been exposed to COVID-19.
If you encounter a workplace situation involving COVID-19 and a potential human rights issue, Doak Shirreff Lawyers LLP would be happy to assist you.
Please feel free to contact the Employment Law Group at Doak Shirreff Lawyers LLP for more information by contacting Nikita Gush at [email protected], or call 250-763-4323, or through our toll-free number at 1-800-661-4959. We can consult with you remotely as needed.