‘Negative treatment of employees who have COVID-19 is discriminatory and prohibited’
Employers must keep human rights principles at the centre of decision-making during the coronavirus pandemic, says the Ontario Human Rights Commission (OHRC).
“Both public and private sector organizations must recognize their human rights obligations, and consider the potential disproportionate impacts of COVID-19 on the vulnerable groups they employ or serve,” says the OHRC.
Employers should ensure any restrictions are consistent with the most recent advice from medical and public health officials, and are justified for health and safety reasons, says the commission.
“Negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under the [Human Rights Code]. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.”
An employer should not send an individual employee home or ask them not to work because of concerns over COVID-19, unless the concerns are reasonable and consistent with the most recent advice from medical and public health officials.
And an employer may not discipline or terminate an employee who is unable to come to work because medical or health officials have quarantined them or have advised them to self-isolate and stay home in connection with COVID-19, says the OHRC.
An employee who has care-giving responsibilities should be accommodated to the point of undue hardship, which might include staying home. These care-giving responsibilities which relate to the code ground of family status could include situations where another family member is ill or in self-isolation, or where their child’s school is closed due to COVID-19, says the commission.
Employers should give employees flexible options — such as working remotely — as a best practice and as an accommodation even if people are not currently sick but need to self-isolate or stay home due to other reasons related to COVID-19, says the OHRC.
“Employers should be flexible and not overburden the health-care system with requests for medical notes. Unnecessarily visiting medical offices increases further risk of exposure for everyone.”
This was echoed when the Canadian Medical Association said employers should stop asking for sick notes amid COVID-19.
At the same time, 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 productive work for the employer (for example, telework). It is also not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19, says the commission.