The Human Rights Code (“Code”) provides every person in the workplace the right to be free from discrimination because of a ground that is protected under the Code. Protected grounds under the Code include disability (which would cover confirmed or perceived cases of COVID-19), place of origin, ethnic origin, ancestry, race, citizenship, and family status (defined as the parent-child relationship).
Differential and negative treatment of individuals based on these grounds is prohibited under the Code.
For example, an employer’s decision to send home only its Asian workers would be considered discriminatory on the basis of the workers’ race, ancestry, ethnic and place of origin. To avoid liability under the Code, the employer would have to prove that there was a non-discriminatory reason for this decision, or that it was a bona fide occupational requirement. For example, the employer could demonstrate that the decision was based on the workers having recently traveled to a high-risk area (e.g. China, South Korea, Japan, Thailand and Vietnam).
During a time where many individuals are being stigmatized due to COVID-19, employers must be careful not to isolate certain groups of people based on their protected characteristics and be vigilant to ensure that other workers are similarly not discriminating against one another.
The Code also requires employers to accommodate the needs of employees in relation to COVID-19, unless it would amount to undue hardship based on cost or health and safety. For example, accommodation could include providing a job-protected leave to quarantined individuals and accommodating those individuals upon their return to the workplace. Accommodation with respect to family status could involve providing flexible work hours or time off where employees have made reasonable efforts to meet their childcare obligations but are unable to do so without missing work.
If you need legal advice about a human rights issue, reach out to a lawyer at Turnpenney Milne LLP. We would be happy to assist you.