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.

Topics covered are:

Discrimination and COVID-19
Employment
Services and housing
Masks

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.

Masks

Please note, this is the only information the Alberta Human Rights Commission has released about mask-wearing. The Commission has not published or posted any online graphics or posters about mask-wearing.

Generally any requirements related to health and safety and COVID-19, such as wearing a mask, are not prohibited by the Act. Simply posting a notice that masks are required is not contrary to the Act. However, depending on the circumstances, an employer, service provider, or landlord may have the duty to accommodate a person with a disability or another relevant protected ground such as religious belief that supports a reasonable basis for not wearing a mask.

People with certain disabilities may have difficulty wearing a mask if, for example, they have severe allergies, experience asthma attacks, or have other respiratory issues. Masks are a barrier to people with hearing disabilities who rely on lip reading or facial expressions to communicate. Masks may not be suitable for children and adults with certain physical, intellectual, or cognitive disabilities, such as autism.

An inability to access or use a mask should not lead to automatic negative consequences, such as harassment, employee discipline or termination, complete denial of service, or eviction from housing. The employer, service provider, or landlord has a duty to accommodate. For example, a store could provide curbside pickup for a customer unable to wear a mask because of a disability. Similarly, an employer would have an obligation to accommodate employees to the point of undue hardship. However, consideration will be given to their need to balance accommodation obligations with their other legal obligations to co-workers and customers.

The Commission may accept a complaint based on an assertion that someone has a disability and was not accommodated. During the complaint process, someone making a complaint may need to provide medical information to confirm they have a disability that prevents wearing a mask. They should also be able to show a reasonable attempt to receive accommodation, recognizing that not all resolutions will be perfect.

The Commission may accept a complaint based on an assertion that wearing a mask interferes with a religious belief. During the complaint process, if challenged, someone making a complaint may need to provide information showing that not wearing a mask is a sincerely held belief. Again, that person should be able to show a reasonable attempt to receive accommodation, recognizing that not all resolutions will be perfect.

This material was developed based on information from the Ontario Human Rights Commission.

Find more information on COVID-19 measures www.alberta.ca/coronavirus.

Revised: August 14, 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.