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August 13, 2020

Is having COVID-19 a disability under human rights legislation?

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  5. Is having COVID-19 a disability under human rights legislation?

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.

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Article by firstreference

Note: This page provided by First Reference is for employers needing more information on the impact, rules and best practices for addressing the global novel coronavirus pandemic also known as COVID-19. (Last updated July 20, 2020, at 11:55 p.m.). The first batch of questions discusses the broad issues related to COVID-19 and government responses. The second batch of questions are frequently asked questions by employers needing more information on the impact COVID-19 has on the application of their workplace practices and policies for addressing the global coronavirus pandemic.

The circumstances and potential consequences for employers in connection with COVID-19 continue to evolve each day. We recognize that change resulting from COVID-19 is happening in real-time. We will keep you up-to-date with measures put in place by Canadian governments to help with these issues as they are implemented as soon as we can and details are available, by updating this page. Also, when making hard decisions to protect your employees, customers and your business, we strongly recommend seeking the advice of a lawyer to avoid any liability.

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