Balancing rights in the face of a pandemic where significant public health concerns are at play can be tricky. However, employers should take care not to violate human rights legislation when dealing with issues regarding COVID-19 in the workplace.
Is COVID-19 a Disability?
The Alberta Human Rights Act (“the Act”) protects against discrimination in the workplace based on certain protected grounds including physical and mental disability. A disability can include any past or present conditions that create a significant impairment for an employee, and impacts their ability to do their job. Protections under the Act also extend to perceived disability, where a person does not currently have a disability, but is treated adversely because of a perception that they will eventually develop a disability or pose a risk to others.
Based on this, COVID-19 likely qualifies as a disability under the Act. Therefore, employers need to ensure that an employee is not treated adversely because they have, or are thought to have, the virus. Any decisions which may have an adverse impact on an employee such as a request that an employee work from home or stop coming into the office because of concerns over COVID-19, should be reasonable and consistent with the most recent advice from medical and public health officials.
When is the Duty to Accommodate Triggered?
Employers have a duty to accommodate employees affected by COVID-19, up to the point of undue hardship. In order to avoid potential discrimination claims, employers should avoid disciplining or terminating an employee who is unable to work because they have been advised by public health or medical officials to quarantine themselves, or to self-isolate in connection with COVID-19.
Employers should also do their best to accommodate employees who are particularly vulnerable to
COVID-19 such as persons with compromised immune systems or other underlying medical conditions. Flexible working arrangements such as the ability to work from home should be investigated and offered in these circumstances, in full consultation with the employee, unless such measures would amount to undue hardship for the employer.
An employee who has caregiving responsibilities, which relate to the Act’s protected ground of family status, should also be accommodated to the point of undue hardship. It is important to note that caregiving responsibilities may also extend to situations where another family member is ill or in isolation, or where their child’s school or daycare is closed due to COVID-19.
What Should Accommodations Look Like?
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 their required duties. Accommodations can include flexible options for employees, such as working remotely or telework. Any requests for accommodation should be considered in good faith and include fulsome consultation with the employee. Employers may also want to consider a temporary relaxation of certain policies such as requests for medical notes or documentation in order to ease the burden on the health care system, and prevent unnecessary visits to medical offices.
What are the Risks of Failing to Accommodate?
Failing to accommodate an employee up to the point of undue hardship may result in a Human Rights Complaint being brought against the employer. In Alberta, the Human Rights Tribunal has broad remedial powers to award general damages for breach of the Act, as well as damages for lost wages, benefits, and mental suffering.