April 2021
The BC Human Rights Code (the “Code”) seeks to foster a society in British Columbia that is discrimination free and allows for all to participate in the economic, social, political and cultural life in British Columbia.
To achieve this, the Code prohibits discrimination against certain protected characteristics that are set out in the Code. The protected characteristics include, among others, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation and gender identity or expression.
This three-part series seeks to inform you about your accommodation rights within the employment context under the Code and, particularly, seeks to provide you with guidance as we continue to navigate the Pandemic with respect to the following issues:
- vulnerable employees;
- mental disabilities; and
- family status.
Vulnerable Employees
If an employee has a disability that impacts their ability to carry out their employment duties, their employer has a duty to accommodate that employee. The employer is entitled to seek further medical information about the employee’s condition as it pertains to the employee’s ability to complete their employment duties.
Based on the information the employer received, the employer must assess the appropriate accommodations to implement to address the limitations and restrictions caused by the employee’s disability. The employer should consider various accommodations that will allow the employee to perform their employment duties as well as alternative or other related employment duties.
Generally, the extent of accommodations that an employer must provide an employee with a disability is very much dependent on the circumstance (i.e. the disability itself, the employment duties of the employee, whether the accommodation will cause an undue hardship to the employer, etc.). Discussing accommodations can be a difficult balancing act for an employee or employer and we recommend that parties obtain legal counsel at the onset for guidance.
That being said, assessing and determining the appropriate accommodations for employees who are more vulnerable to COVID-19 during the Pandemic may prove to be more challenging. Although employees who are more vulnerable to COVID-19 may technically notfall under the disability protected characteristic under the Code, such employees are at a high risk of either contracting COVID-19 or risk permanent health consequences or even death as a result of their health status and advanced age.
At the onset of the Pandemic, BC’s Office of the Human Rights Commissioner released a Policy Statement, which you can find here: BCOHRC_Mar2020_COVID19-Policy.pdf (bchumanrights.ca). In particular, the following provides some insight with respect to employees that are more vulnerable to COVID-19:
- Employers must also accommodate employees who are considered particularly vulnerable to the virus, such as elderly or immuno-compromised people. This means taking all necessary precautions to stop the spread of the virus in the workplace (such as extra cleaning) unless doing so would amount to undue hardship. It also means that they must provide flexible work arrangements to allow vulnerable workers to work from home or from safe spaces, unless doing so would amount to undue hardship.
Employers and employees should assess all appropriate accommodation options and should consider discussing the matter with legal counsel at the onset of such discussions. Whether you are an employer or employee, our Labour and Employment Practice Group can discuss further accommodation options with you or inform you about the Human Rights Tribunal Complaint process should the accommodation issue not resolve.
As we navigate the continuously changing saga of the Pandemic, LK Law’s Employment and Labour Group appreciates that this truly is an unprecedented circumstance that can be a cause for significant stress. Our next segment will cover COVID-19 accommodation issues in relation to mental health in the workplace.
If you have any questions or concerns related to the above issues, any member of our Employment and Labour Group would be more than happy to discuss.
You are also welcome to register to join members of our Employment and Labour Group for an interactive employment law discussion regarding COVID-19 related accommodation issues scheduled on May 19, 2021 at 12:00 noon to 1:00 p.m. Email [email protected] for details on how to register!
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.