Ignoring the OHRC Statement on COVID-19 Can Have Severe Consequences for Employers

Employers have a long road ahead when it comes to finding a new normal with their employees. One thing is certain, employment laws and the way employees are managed and disciplined on a day-to-day basis will come under the microscope. The Ontario Human Rights Commission (OHRC) has issued a policy update that indicates one thing: Employers beware disciplining COVID-19 affected employees. The consequences could be dire.

The OHRC issued a policy statement regarding COVID-19 on March 13, 2020, noting that the disability provisions of the Human Rights Code are “…engaged in relation to COVID-19 as it covers medical conditions or perceived medical conditions that carry significant social stigma.” Discrimination against anyone perceived to or actually stricken with COVID-19 is a breach of this new policy.

This one statement is of particular importance for employers:

“Employer absenteeism policies must not negatively affect employees who cannot work in connection with COVID-19. An employer may not discipline or terminate an employee who is unable to come to work because medical or health officials have quarantined them or have advised them to self-isolate and stay home in connection with COVID-19.”

In the case of employees who are sick because of other illnesses or injuries unrelated to COVID-19, they often cannot provide medical notes since clinics and doctors’ offices are only open for essential/emergency treatment.  While an employer can require evidence “reasonable in the circumstances” that they are eligible for sick leave, defining “reasonable” without guidance from legal counsel may be a costly decision.  Employers should take a more understanding approach.  Otherwise, employers are risking additional disability claims under the OHRC’s COVID-19 policy.

Duty to accommodate

There is no way to know when workplaces can return a sense of normalcy – or even what that new normal will look like.  The Policy clearly indicates  that employers have a duty to provide accommodation to the employees to the point of undue hardship. In light of OHRC’s position, it is discrimination against a disability if employers fire, demote, or lay off an employee because of these situations. Instead, employers should consider providing accommodations appropriate to their positions and value to the organization.

Now is not the time for decisions made lightly. Employers must take extra caution when terminating any employees who previously have taken sick leaves, have had injuries, or are pregnant or returning to work after maternity leave.

In Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 , at paras 14 and 16, the Supreme Court of Canada states that:

“… the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.

Some employers may find it difficult to accommodate employees’ unique needs, especially during this time. However, seeing those employees as “problematic” and treating them as such can have severe consequences.  Terminating or punishing these employees can carry significant liabilities. Employers should evaluate and consult a qualified lawyer to assess their risk exposure before making any final decisions.

COVID-19 has changed the rules of engagement and expectations of employers. Hum Law can advise how to manage these challenges as policies are updated and changes happen daily.  Contact us today.