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Many employees are now facing circumstances in their personal lives affecting their ability to work or to perform their job to the expected standard.

Nelligan Law gratefully acknowledges the law of Melanie Sutton, Student-at-Law, in writing this blog post. 

The OHRC has taken the position that 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 Code.

Ontario’s Human Rights Code (the Code) protects employees’ rights by prohibiting discrimination based on numerous protected grounds, including disability, age, gender, sexual orientation, race, religion, country of origin, marital status, and family status. These protections extend to all employment relationships as well as contractual relationships, such as those between a company and an independent contractor.

The Ontario Human Rights Commission (OHRC) has prepared a policy statement explaining how employees and employers should seek to balance their rights to ensure that there is not an erosion of legislated human rights protections during this challenging time. Although not legally binding, the OHRC’s policy statement  provides important guidance to individuals and businesses attempting to determine their rights and obligations in the employment law context.  

The OHRC has taken the position that 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 Code. However, the OHRC has recognized the importance of balancing an individual’s right to non-discrimination and civil liberties with public health and safety. Therefore, some measures intended to slow the spread of COVID-19 may be justified in the interest of public health and safety, even if they restrict individual rights or freedoms.

Job Protection

The Ontario government has created a job-protected leave under the Employment Standards Act for employees who are unable to work due to COVID-19. Specifically, employers cannot discipline or terminate employees who are unable to work because they are:

  • sick with COVID-19;
  • self-isolating after travelling or coming in contact with someone who has tested positive for COVID-19;
  • caring for children because schools and day cares are closed; or,
  • caring for other dependents afflicted with COVID-19.

Although this legislative measure provides important job protection, employers are not required to pay employees who cannot work due to COVID-19.

Right to Reasonable Accommodation

Under the Code, employers have a duty to accommodate employees to the point of undue hardship. The duty to accommodate in the context of the COVID-19 pandemic may apply if an employee is able to continue working but requires some form of accommodation to do so. For example, an employee may need to be at home to supervise their children but may be available to work during that time. Employers should also be sensitive to and make efforts to accommodate individuals with particular vulnerabilities, for example, individuals with compromised immune systems.

Where an employee can demonstrate the need for accommodation on one of the grounds protected by the Code and is able to effectively fulfill most of job  duties from a remote work environment, employers should accommodate the employee by facilitating remote working.

If there is no work for employees because of the impacts of COVID-19, it is not necessarily discriminatory for an employer to implement a mass lay-off. However, a lay-off targeted at an individual employee or a small group of employees on a ground proscribed by the Code, for example race, age, or disability will constitute discrimination.

Refusing Unsafe Work

While employers have a duty to provide a reasonably safe work environment and accommodate employees’ needs pursuant to the Code, they are also entitled to expect employees to continue performing their work.

The Ontario government has prepared industry-specific guidelines that employers must follow. If employers are following those guidelines and making every effort to keep their work environment as safe as possible, employees will be expected to come to work.

The Occupational Health and Safety Act provides workers with a right to refuse unsafe work.   However, the process that must be followed to properly refuse unsafe work requires a complaint to be investigated and provides the employer with an opportunity to make the workplace safer. Visit the Ontario Ministry of Labour, Training and Skills Development website for more information about the procedure for a work refusal.

In order to determine whether your particular employment situation or workplace context raises a human rights or occupational health and safety issue, it is important to obtain legal advice, as any assessment of relative rights and obligations will often depend on the facts.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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