COVID-19 and Human Rights

We are in the midst of frequent information updates on the impact of COVID-19 in our communities. Below are some general principles concerning our obligation to maintain our best practices in human rights in Alberta.

Disclaimer: This following statement does not constitute legal advice. It is provided only for information purposes, and does not suggest what, if any, decision might be made by a Human Rights Tribunal in any specific complaint.

Discrimination and COVID-19

Discrimination related to COVID-19 (including harassment against any persons or communities) is prohibited when it involves a ground under the Alberta Human Rights Act, in the areas of services, housing, and employment.

The Act protects against discrimination based on protected grounds, including disability, place of origin, and race, whether perceived or otherwise. COVID-19 is not isolated to people of any particular ethnic origin, place of origin, or race. Some restrictions, such as a restriction based on where an individual recently travelled, may be reasonable and not discriminatory. However, depending on the circumstances, the protected grounds may trigger human rights obligations under the Act.

Employers and housing and service providers should ensure any actions they are taking or any restrictions made concerning COVID-19 are consistent with the most recent advice from medical and public health officials, and are justified for health and safety reasons.

At the same time, the right to be free from discrimination can be limited under the Act, for example, where health and safety risks are serious and would amount to undue hardship, or where actions that appear to be discriminatory can be shown to be reasonable and justifiable. Information about undue hardship is available on the Commission’s website in the Human Rights Guide, Duty to Accommodate.

Employment

Negative treatment of employees who have, or are perceived to have, COVID-19, which is unrelated to legitimate reasons of public health and safety, is likely to be found to be discriminatory and prohibited under the Act. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship.

An employer should not send an individual employee home or ask them not to work because of concerns over COVID-19 unless the concerns are reasonable and consistent with the most recent advice from medical and public health officials. In unique circumstances, an employer might have other health and safety concerns that could amount to undue hardship, but they would need to be able to show objective evidence to support such a claim.

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.

An employee who has caregiving responsibilities should be accommodated to the point of undue hardship. Such an arrangement might be a leave or an arrangement to work at home. These caregiving responsibilities, which relate to the Act’s protected ground of family status, could include situations where another family member is ill or in self-isolation, or where their child’s school is closed due to COVID-19.

Employers should be sensitive to other factors, such as any particular vulnerability an employee may have (for example, if they have a compromised immune system).

Employers can consider flexible options for employees, such as working remotely where feasible, as an accommodation even if they are not currently sick but need to self-isolate or stay home due to other reasons related to COVID-19. Employers should consider requests for accommodation in good faith. Employers should be flexible and consider not overburdening the health care system with requests for medical notes. Unnecessary visits to medical offices increase further risk of exposure for everyone. An employee who cannot work because of COVID-19 may be entitled to employee sick or disability leave and benefits offered by the employer or available under other government benefit programs.

At the same time, employers are entitled to expect that employees will continue to perform their work unless they have a legitimate reason for why they cannot. If an employee is required to self-isolate for legitimate reasons, the employer is entitled to explore alternative options for how the employee may still continue to perform productive work for the employer (for example, telework). It is also not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19, so long as employees are not selected for lay-off based on a protected ground.

Services and housing

Individuals also have the right to be free from discrimination, including harassment related to COVID-19, in services and housing based on grounds under the Act.

Services include, among other things, education institutions, retail shops and malls, and the hospitality industry (including restaurants, bars, hotels and entertainment facilities). Housing providers include condo corporations, rental apartments, and residential institutional facilities like long-term care and retirement homes.

Negative treatment of service recipients or residents who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, could be discriminatory and prohibited under the Act. Organizations in these areas may also have a duty to accommodate persons in relation to COVID-19, unless it would amount to undue hardship based on cost or health and safety.

The Commission encourages all service and housing providers to take universal precautions based on the most current advice from public health officials.

More information on COVID-19 measures can be found at www.alberta.ca/coronavirus.

 

Revised: March 16, 2020


Our vision is a vibrant and inclusive Alberta where the rich diversity of people is celebrated and respected, and where everyone has the opportunity to fully participate in society, free from discrimination.