The COVID-19 pandemic has created numerous challenges and significant uncertainty in a number of areas, including human rights law.
A number of Human Rights Commissions across the country have recently issued policy statements setting out their policy positions in relation to COVID-19 human rights related issues, and intended to guide employers, landlords, and service providers with respect to those issues. As these positions have not yet been tested before human rights tribunals or the courts, employers, landlords, and service providers should not blindly accept them but would be well advised to pay heed to them when making the difficult decisions facing all organizations in these challenging times.
At the time of writing this bulletin, human rights commissions in the following jurisdictions have issued policy statements:
- Alberta on March 16, 2020;
- British Columbia on April 2, 2020;
- Manitoba on March 17, 2020;
- Newfoundland and Labrador on March 16, 2020;
- Nova Scotia on March 20, 2020;
- Ontario on March 13, 2020;
- Prince Edward Island on or after March 13, 2020; and
- Quebec on March 17, 2020.
Most notable for employers, landlords, and service providers is that a number of the commissions - including BC, Manitoba, Ontario, Nova Scotia, and P.E.I. - have expressly stated their view that the protected ground of disability is engaged in relation to COVID-19, on the basis that the protected ground of disability includes medical conditions or perceived medical conditions that carry significant social stigma. For example, the BC Commissioner opined that the seriousness of the illness made it more akin to the protections that apply to those with HIV than to the lack of protections for those with the common cold. Similarly, the commissions in Alberta and Quebec expressed their view that negative treatment of individuals who have, or are perceived to have, COVID-19 is, on its face, discriminatory and prohibited under human rights legislation.
The commissions emphasized their view that employers, service providers, and landlords are expected to accommodate those that may have COVID-19, those that are particularly vulnerable to COVID-19 like the elderly or immunocompromised, and those with increased child-care obligations arising from COVID-19, to the point of undue hardship. At the same time, it was consistently recognized that employers are entitled to expect that employees will continue to perform their work unless they have a legitimate reason why they cannot. It should be noted that the issue of whether the protected ground of family status would be engaged in relation to COVID-19 family care obligations may depend upon the jurisdiction, as the law relating to family status is not consistent across the country.
Whether these blanket statements by the commissions will withstand scrutiny and are consistent with human rights law requiring individualized assessment is yet to be seen.
In any case, it is of note that the commissions were consistent in their views that employers, landlords, and service providers should ensure any actions they are taking or any restrictions made concerning COVID-19 align with the most recent advice from medical and public health officials, and are justified for health and safety reasons.
In the context of making decisions relating to COVID-19 issues, we encourage employers, landlords, and service providers to exercise caution, and where human rights protections are engaged, to approach each situation on a case-by-case basis.