Employees in Ontario are protected by Ontario's Human Rights Code (the "Code") in terms of the COVID-19 pandemic. Currently, those protections include:
- it is discriminatory to treat employees who have, or are perceived to have, contracted COVID-19, in a negative manner, for reasons unrelated to public health and safety;
- employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety;
- employers should not treat employees in a differential manner over COVID-concerns, unless these concerns are reasonable and consistent with the most recent advice of medical and public health officials;
- unless an employee can provide a legitimate reason why he or she cannot work, employers have a right to expect they will continue to perform their work. If an employee is required to self-isolate for legitimate reasons, the employer can explore alternative options to allow the employee to continue to work;
- employers may not discipline or terminate individual employees who are unable to come to work because medical or health officials have quarantined, or advised them to self-isolate and stay home because of COVID-19 concerns;
- employers should accommodate employees who have care-giving responsibilities to the point of undue hardship, which may include working from home, reduced hours or leave without pay;
- employers should take requests for accommodation in good faith and avoid requiring medical notes to justify employee absences where such notes are unnecessary; and
- it is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.
Employers should also remind employees that it is unacceptable to treat other employees or members of the public differently, or assume they might be infected with COVID-19 on the basis of their race, place of origin, citizenship, ethnic origin or ancestry.
Assuming that someone has the virus because they happen to have exhibited one of the symptoms of the virus and because of an assumption about where they are from based upon how they look would most likely be considered discrimination.
If an employer were aware of this differential treatment and chose to do nothing about it, they could be exposed to liability since employers are in most cases vicariously liable for the actions of their employees.
Differential treatment related to this virus is not permissible.
Employers should likely go further and communicate that any employee who behaves in such a manner will be subject to corrective action and, possibly, discipline.
Anne Lemay and Nathan Hoo, Gowlings WLG, published March 19, 2020, via Lexology.com