By Laura Track, Human Rights Lawyer and Educator, March 30, 2020
Top Ten Human Rights Tips for Employers during COVID-19
Employers across British Columbia are making incredibly difficult decisions right now about terminations, temporary layoffs, and how to maintain safe and healthy workplaces. Many employment lawyers have stepped up to provide helpful resources and explainers to assist employers to comply with their legal obligations. You can read a selection of them here, here, here and here.
CLAS’s Human Rights Clinic provides legal information, advice, and representation to people with complaints under BC’s Human Rights Code (the “Code”). We also offer educational trainings and workshops to employers, managers, human resources professionals, and others, to help them understand their responsibilities under the Code to uphold employees’ human rights and prevent discrimination in their workplaces.
Here are our top ten things for employers to bear in mind during the unprecedented situation presented by the COVID-19 pandemic.
- COVID-19 is most likely a disability
The Code prohibits discrimination in employment on the basis of disability or perceived disability. “Disability” is not defined in the Code. Whether a condition is a disability for human rights purposes must be decided on a case-by-case basis.
While the Human Rights Tribunal has not yet had the opportunity to weigh in on this question, it is likely that being ill with COVID-19 would qualify as a “disability” under the Code. BC’s Human Rights Commissioner has taken the position that COVID-19 amounts to a disability. The Commissioner reasons that COVID-19 is different from a common cold or flu, which the Tribunal has held do not amount to disabilities, because of its seriousness and the stigma that may result from a diagnosis.
Employers must not discriminate against employees who have been diagnosed with COVID-19, or who the employer perceives may have the disease. This means employers must not take negative action or impose negative consequences on an employee because they believe the employee has or may have the disease, unless that treatment is justified.
Upholding public health and workplace safety may be a reasonable justification for taking steps that negatively impact a person’s employment (requiring them to go home sick or to work from home, for example). Justifications must be based on evidence, and not on fear, speculation, or stereotypes.
- Employers have a duty to accommodate employees with disabilities
Employers have a duty to accommodate employees who are ill with COVID-19, to the point of undue hardship. This may require employers to provide sick leave, flexible working arrangements, and other accommodations, unless doing so would amount to an undue hardship for the employer.
Potential hardships for employers in the current circumstances might include excessive costs, health and safety concerns, or challenges specific to a particular workplace. Employers must be prepared to provide concrete evidence regarding the attempts they have made to accommodate a sick employee, and explain why doing more would amount to an undue hardship.
Employers should also be aware that employees with other disabilities are particularly vulnerable at this time. Employees with disabilities may require additional accommodations to meet their needs and allow them to continue contributing their best work.
- Employee privacy is critical
Employees must participate in the accommodation process. This means they must provide their employer with the information the employer needs in order to accommodate them, and must accept a reasonable accommodation.
In general, employees seeking accommodations are under no obligation to disclose their specific diagnosis. Employee privacy is extremely important in the context of providing accommodations for employees with disabilities, and COVID-19 is no exception.
- Do not rely on assumptions or stereotypes
Employers must not take into account other characteristics protected by the Code when taking steps to address COVID-19-related concerns. For example, while an employer would likely be within their rights to ask an employee who appears ill whether they have travelled to a COVID-19 hotspot or been in close contact with someone who has, it would be discriminatory to ask this question only of Chinese or Italian workers.
It is essential that employers rely on the best possible information and evidence when making decisions. Assumptions and stereotypes have no place here.
- Make sure no one is disadvantaged or treated differently on the basis of a protected characteristic
Employers are making difficult decisions to send employees home, lay employees off, or, in some cases, require employees to report to work. It is important not to factor in protected characteristics such as age, family status, race, or place of origin, when making these calls.
For example, it would be discriminatory (and completely unjustified) to send Chinese staff home while allowing non-Asian workers to remain at the worksite. Requiring staff without children to come into the office while allowing workers with children to work from home could be discrimination on the basis of family status. Laying off workers who are on maternity or medical leave, while not laying off other staff, could be discrimination on the basis of sex or disability. Employers should take care to ensure that their legitimate business decisions at this challenging time do not directly or indirectly discriminate by treating certain groups of employees differently.
- “The Workplace” does not just mean the physical workplace
Remember that workplace protections from discrimination apply away from the physical workplace. Whether employees are meeting by Zoom, chatting over Slack, or communicating by email, their communications must avoid harassment, bullying, and discrimination.
Reiterate your anti-discrimination and harassment policies, and ensure your employees know how to make a complaint in remote work situations.
- Racism? Ageism? Shut it down
Employers have a duty to provide a discrimination-free workplace. Employers can be liable for the discriminatory conduct of their staff, and have an obligation to take swift and effective action to address discriminatory harassment or bullying being perpetrated by one employee against another, or by a customer or client against a staff member.
Watch out for harassment or bullying targeting employees on the basis of protected characteristics including age, race, and place of origin. We’ve heard disturbing stories of people of Asian descent being targeted for verbal abuse and other racist treatment. Encourage your staff to speak up if they hear racist, ageist, or otherwise discriminatory remarks.
- Duty to accommodate employees’ family care obligations
Employers have a duty to avoid discrimination on the basis of family status. This entails a duty to accommodate employees’ child care obligations, and potentially other family care obligations, to the point of undue hardship.
With children out of school and many daycares shut, parents of young children may have no choice but to remain home to look after their kids. Employers should do what they can, to the point of undue hardship, to provide flexible working arrangements for employees with children, including support for working from home.
Employees may also have elder care responsibilities. This particular group has been identified as high risk during this pandemic and may require more support from family members for their care. Employers should be mindful that the burden on employees in caring for their family members can be significant at this time.
- Be kind, be kind, be kind
Writer Henry James’ appeal has rarely had more relevance. Everyone is dealing with a lot right now (and many people have faced extreme challenges and barriers long before this pandemic hit). Now is the time for kindness, empathy, flexibility, and understanding.
Older employees may be less familiar with online technologies and may be struggling to adapt to new remote working set-ups. Employees with vulnerable family members, or who are vulnerable themselves, may be particularly stressed. Asian workers may be nervous about racist comments from co-workers. And many, many people are worried about making rent, purchasing groceries, and keeping their employment. Be supportive and patient with people whenever you can.
Employers should be aware that employees’ pre-existing disabilities such as depression, anxiety disorders, substance use problems, and other mental health challenges may be triggered during this unprecedented time. Employees may not be at their best. Their behaviour may stem from a disability that you may or may not know about. Check in, be supportive, and accommodate as needed.
- COVID-19 does not affect all of us equally
Evidence shows that COVID-19 can be particularly devastating for people with compromised immune systems, respiratory problems, and the elderly. To the extent possible, prioritize the needs of those who are particularly vulnerable in your workforce. This may mean taking extra steps to ensure the safety of these groups, or placing them at the front of the line when it comes to arranging remote and flexible working provisions.
It is also true that those who face multiple forms of disadvantage and oppression, such as single mothers, migrant and temporary foreign workers, queer and trans communities, people with disabilities, people who use criminalized substances, and people with low incomes and precarious work, will also experience unique challenges and barriers. They are also likely to have the fewest options for self-isolating, maintaining good hygiene, and refusing unsafe work.
As an employer, consider the unique needs and particular vulnerabilities of your workforce, and do what you can to offer support and assistance.
Human rights law sets the legal floor, not the ceiling. Employers cannot do less than what the Code requires, but they certainly can, and many are, doing much more. We are all in this together. Let’s look out for the most vulnerable among us and do everything in our power to ensure that human rights are respected and protected during this difficult time.