Williams HR Law LLP


August 31, 2020

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Risks of Physical Disability Discrimination in Light of COVID-19 Prevention Policies

Across Canada, most employers have heightened health and safety obligations to prevent the spread of COVID-19 to employees and others in the workplace, including through specific rules and guidelines that employers must follow in order to meet their legal obligations. In meeting these new health and safety responsibilities, employers must be mindful of their pre-existing obligations to employees with disabilities, specifically of the obligation to accommodate employees where possible to the point of undue hardship. The interaction between pre-existing human rights obligations and the heightened health and safety considerations in light of COVID-19 can create difficult situations to navigate and can result in liability for employers if handled improperly.

In this eighth post of our blog series, Return to Work Case Studies from the Front Lines, we draw from our experiences working with employers “on the ground” to provide practical insights for organizations that, in implementing COVID-19 health and safety prevention procedures, have risked discriminating against employees with a physical disability or illness. The following case study illustrates how employer obligations to accommodate physical disabilities can overlap with health and safety concerns related to COVID-19, and the potential risk of discrimination on the basis of disability if these situations are not handled appropriately.

As always, the case study below is based on a real-world situation with respect to which we recently provided advice to a client. The details of the scenario have been adapted and anonymized.

The Scenario

  • Antonia S. is a 52-year-old female who works for Press Corp, a furniture company, in Press Corp’s manufacturing plant where it manufactures various types of furniture. Antonia works as a General Technician, which requires moving through different stations throughout the workday on various tasks in the furniture manufacturing process, including operating machinery (saws and other woodworking machines), sorting materials, and assembling furniture both on assembly lines and at designated individual work stations.
  • Antonia has a pre-existing respiratory illness that sometimes causes flare-ups that cause Antonia to have trouble breathing. Antonia takes medication for the illness, and carries an inhaler with her at all times to relieve flare up symptoms.
  • In March 2020, during a period that Press Corp was temporarily closed due to COVID-19, Antonia contracted COVID-19 outside of the workplace.
  • Press Corp reopened one week later, and upon learning of the illness from Antonia, Press Corp understood that it could not ask Antonia for a medical note confirming Antonia’s diagnosis. Press Corp granted Antonia a leave of absence under Ontario’s Infectious Disease Emergency Leave under the Employment Standards Act, 2000 (“ESA”) for two weeks, after which Antonia advised Press Corp that she was no longer symptomatic and ready to return to work.
  • Upon being advised by Antonia that she was no longer symptomatic, Press Corp agreed to return Antonia to work, and Antonia returned to work in late April 2020. Press Corp had some hesitation in agreeing to return Antonia to work without medical evidence given her pre-existing respiratory illness. However, Press Corp understood that they were prohibited from asking for medical information because Antonia had taken a leave under the Infectious Disease Emergency Leave.
  • Upon return to work, Antonia was advised of Press Corp.’s updated COVID-19 prevention policies and procedures, which required, among other things, that all individuals in the plant wear a facemask at all times while working inside the building. Antonia indicated to Press Corp that she understood the policies and procedures by signing off on a written document outlining the policies and procedures.
  • A few days after Antonia returned to work, Ricky sees Antonia in the furniture assembly area working with her facemask hanging from one of her ears. Ricky notices that Antonia has redness in her face, and her face and appears to have some shortness in her breath. Ricky advised Antonia to follow Press Corp’s policies and to put her facemask on properly. Antonia apologizes and tells Ricky “Sorry, I was just catching my breath, I have a respiratory condition and these masks make it hard to breath.” Ricky explains to Antonia that its important that she wear the facemask in the plant at all times.
  • The new week, Ricky receives a complaint from another employee, Savannah, that she has seen Antonia in the plant without a facemask. Ricky approaches Antonia and firmly tells her that he has been advised that Antonia again has not been wearing a facemask in the plant. Antonia is again apologetic, but tells Ricky that she is having trouble wearing the facemask for long periods of time, and sometimes feels like she has to take the facemask off to breathe. Ricky tells Antonia, “look, no one wants to wear a mask here, but it’s company policy.” Ricky tells Antonia that he expects she will wear a facemask in the plant at all times going forward and any further incident could lead to discipline.
  • A few days later, Ricky is advised again by Savannah that she saw Antonia in the plant not wearing a facemask. Ricky immediately contacts Press Corp’s Human Resources department and advises that he would like to issue Antonia a formal letter of discipline for failing to comply with the Company’s policies.
  • Before taking any further action, Press Corp reached out to our Firm for advice.
  • We first advised Press Corp that while the ESA prohibits employers from asking for medical information to support an employee’s leave under the Infectious Disease Emergency Leave, employers are not prohibited from asking for medical information confirming that it is safe for an employee to return to work from such a leave. We expressed to Press Corp that this obligation is particularly significant in light of COVID-19, and that as an employer, it should ask employees for medical information confirming they are fit to work when returning from a medical leave of absence, including related to COVID-19, in cases where the employee may have an underlying condition that could create enhanced risk of contracting COVID-19 in the workplace.
  • Second, we advised Press Corp that while Antonia did not expressly request an accommodation, the health concerns that Antonia had raised with Ricky likely triggered an obligation to inquire with Antonia as to whether she required accommodation for her underlying respiratory condition. Accordingly, we advised Press Corp that it should not issue a letter of discipline in this case, because Antonia’s failure to wear the facemask may have resulted from flare-ups associated with her respiratory condition. The discipline could therefore constitution discrimination against Antonia as a result of her disability.
  • We advised Press Corp that it should inquire further with Antonia about her respiratory condition, and seek medical information from a doctor that provided particulars about Antonia’s medical limitations associated with her respiratory condition, and specifically whether it was safe for her to wear a facemask at work given the duties and responsibilities of her General Technician position.
  • Antonia saw her doctor, Dr. Penrose, who advised Press Corp that in her opinion, given Antonia’s medical condition, Antonia should not be wearing the facemask for more than two hours at a time without one half-hour break in between. We advised Press Corp that it had a legal duty to accommodate Antonia’s respiratory condition by evaluating its own work processes, and determining whether it was possible to provide Antonia with adjusted job responsibilities that would comply with the medical limitations outlined by Dr. Penrose.
  • After receiving Dr. Penrose’s medical opinion, Press Corp evaluated its operations and Antonia’s role, and assessed whether it was able to accommodate Antonia’s medical limitations in the plant. Because of the rotating duties in the Plant, Press Corp found that it would be able to accommodate Antonia by allowing her to work an “adjusted rotation” in the plant, and allowing her to work in isolated spots in the Plant for at least one half-hour after every two hours of work. Press Corp proposed the accommodated work to Antonia, which Antonia accepted.
How the Employer Met its Legal Obligations How the Employer Could Have Exposed Itself to Liability
  • Press Corp sought medical information from Antonia’s doctor to determine whether Antonia had any work-related limitations pertaining to her ability to perform her role, and if so, whether those limitations could be accommodated.
  • Press Corp applied its COVID-19 prevention policies and procedures in a flexible manner, and explored other available solutions to accommodate Antonia’s limitations related to her ability to wear a facemask at work
  • Press Corp met its procedural duty to accommodate Antonia by evaluating potential work arrangements that met the work-related medical limitations identified by Dr. Penrose
  • Press Corp sought legal advice before issuing discipline to Antonia as a result of her not wearing a facemask
  • Upon Antonia’s return to work, despite having concerns about returning Antonia to work given her recent bout with COVID-19 and underlying respiratory condition, Press Corp did not obtain medical information confirming it was safe to return Antonia to work. As such, Press Corp exposed itself to potential liabilities under the Occupational Health and Safety Act (“OHSA”) with respect to Antonia and other employees’ health at work, and potential workers’ compensation claims under the Workplace Safety and Insurance Act (“WSIA”)
  • If Press Corp had disciplined Antonia for her failure to wear a facemask, Press Corp would have discriminated against Antonia for failing to inquire as to whether Antonia required accommodation due to her respiratory condition, in violation of its obligations under the Human Rights Code the (“Code”)
  • Press Corp’s managers must be trained to identify potential Code-related issues and to seek assistance from Press Corp’s Human Resources department in the event potential accommodation scenarios arise; Ricky’s failure to understand the organization’s obligations under the Code and the OHSA could have resulted in liabilities to the Company, and to him personally as a manager
  • Similarly Press Corp employees should be trained on health and safety and accommodation procedures, and instructed to inform designated individuals at the Company if they require accommodation for medical reasons or otherwise. Having clear policies and procedures, and training on those policies and procedures are effective ways to minimize escalation of potential discrimination claims, as well as workers’ compensation claims under the WSIA.

Key Considerations and Takeaways:

The case of Press Corp and Antonia is instructive of the numerous issues that can arise in the workplace related to physical disabilities, particularly in light of the enhanced health and safety risks posed by COVID-19.

Employers must be aware that accommodation obligations under the Code do not only arise when an employee raises a request for accommodation. Employers may have a duty to inquire as t whether an employee requires accommodation where the employer is aware, or ought reasonably to be aware, for example from its observations or conversations with the employee, that there may be a relationship between the employee’s disability and their job performance. If an employer administers discipline or treats the employee adversely for reasons that are related to the disability, it could ultimately result in claims of discrimination under the Code, or of constructive dismissal, giving rise to the employee’s entitlements.

Employers must also be very purposeful in drafting and communicating workplace policies to staff pertaining to health and safety and accommodation. This is particularly the case given the ever-changing risks and regulatory requirements that are required by employers in response to COVID-19. The case study reflects that it is very important for employers to provide training to managers to ensure that managers are capable of identifying situations that may require accommodation, and to escalate these potential accommodation situations to the employer’s human resources department so that the situations can be handled appropriately. Further, it just as important that staff are aware of the resources available to them if they feel that they require accommodation, or identify health and safety issues in the workplace, as early reporting and detection of these sorts of issues can help the employer avoid liabilities as a result of lingering accommodation or health and safety issues that have gone unaddressed for long periods of time.

Given that it is challenging in normal times for employers to understand and meet their duty to accommodate employees and that our current circumstances complicate matters further, employers should ensure they take care to obtain sufficient information from employees and consider employees’ accommodation needs on a case-by-case basis. Our lawyers are, as always, available to assist you in understanding your accommodation obligations in light of the enhanced health and safety obligations during these unusual and challenging times.

This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.