The definition of disability under human rights legislation across Canada is very broad and includes any degree of physical or mental disability.
COVID-19 as a pandemic may be considered a “disability” under human rights legislation, which would then require employers to accommodate the employee who has contracted COVID-19, to the point of “undue hardship”.
Employers may have to provide a leave of absence or modified work to help an infected employee receive treatment and recover while protecting the employee’s job.
Employers should also be sensitive to other factors such as any particular vulnerability an employee may have (for example, if they have a compromised immune system).
Human Rights Commission policy by jurisdiction (when applicable)
The Ontario Human Rights Commission’s policy position is 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 Ontario Human Rights Code. 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 (see http://ohrc.on.ca/en/news_centre/ohrc-policy-statement-covid-19-pandemic).
On April 2, 2020, the Ontario Human Rights Commission announced the release of a policy statement on a human rights-based approach to managing the COVID-19 pandemic.
On April 2, 2020, the British Columbia Human Rights Commission released a statement which identifies COVID-19 as a disability protected under British Columbia’s Human Rights Code, with an accompanying FAQ.
On April 8, 2020, the New Brunswick Human Rights Commission issued an online information resource with some frequently asked questions about COVID-19 and human rights. Under the resource, COVID-19 is classified as a pandemic. Individuals who exhibit symptoms of COVID-19 or test positive for the virus would, for the purposes of human rights, be considered as persons with physical disability, which is protected as a ground of discrimination under the New Brunswick Human Rights Act.
