Many employees and businesses in Ontario are experiencing a high level of uncertainty due to the impact of the COVID-19 pandemic. In many industries, public health measures have required significant changes to the workplace when it comes to where and how businesses operate. There is still a constant risk that employees may become ill or have care responsibilities which engage their human rights. This article covers some common areas that human rights violations may occur amidst the COVID-19 pandemic.

Termination Due to Inability to Work During COVID-19

A foundational aspect of Ontario human rights legislation is that employers are required to accommodate employees to the point of undue hardship. Disability is one of the protected grounds of discrimination under Ontario’s Human Rights Act and employers are required to accommodate their employees should they become ill or otherwise affected by a disability. Disciplining or dismissing employees who are required to quarantine due to the effects COVID-19 would likely be considered a violation of their human rights and make the employer liable for damages.

Instead, employers may consider accommodations for such employees that respect their human rights but also business needs. This requires a dynamic conversation with the employee as to the needs of their health and providing solutions that can work to assist them with a safe return to the workplace. Some employers may consider having quarantined employees work from home during their illness or transition their role to one which can work remotely for the duration of their illness.

Sending Employees Home During COVID-19

Employers have obligations to all their employees during the pandemic beyond the requirements of Ontario’s Human Rights Code. They must also comply with occupational health and safety legislation to keep a healthy and safe workplace which may require that some employees who have become infected to be sent home. However, employees also have the right to be free of discrimination due to disability or perception of disability. As such, employees should not be sent home without reasonable concerns for the health of other employees and the workplace in general.

Employers who have reason to believe that an individual employee is showing symptoms of COVID-19 should document all observed reasons for their conclusions and reach out to the affected employee to give them a chance to discuss their health needs.

Care Responsibilities During COVID-19

Family status is also one of the protected grounds of discrimination under Ontario’s human rights legislation. This applies to individuals in a parent-child relationship where there is a need to provide care.

Employers must provide these individuals with equal treatment and necessary accommodations which would apply to situations where the pandemic affects the care responsibilities of the employees. This also applies to situations where Individuals need to provide care to an ailing parent or provide care for their children where the pandemic may not allow alternative childcare. If an individual is dismissed from their employment or disciplined for reasons relating to their care responsibilities it may open the door to liability for human rights violations.

Employers can reduce the risk of human rights violations in their businesses by developing comprehensive, flexible policies that reflect the fluid nature of the response to the pandemic. Multiple options should be made available to allow employees to address their care responsibilities whilst still meeting business needs. Employers should consult with competent legal counsel when considering discipline or dismissal of employees for workplace issues related to the pandemic.

Conclusion

The effects of the COVID-19 pandemic pose multiple challenges for employers as they maintain operations in compliance with public health measures and mitigate the risks of outbreaks in the workplace. The guiding principle that all should consider when evaluating human rights issues during the pandemic is that risk of illness should be considered as a protected disability and accommodations are owed to employees to enable them to address the effects of the pandemic in their own lives.

Flexibility in this respect will allow employers to reduce the risk of COVID-related human rights violations. To develop policies that address the human rights challenges posed by the pandemic, employers should engage with competent legal counsel and take proactive measures to address human rights issues in the workplace.

Contact Us

If you are a business that is addressing human rights issues during the pandemic or an employee seeking options due to human rights-related incidents at work, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions.

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Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email [email protected].