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COVID-19 and Ontario’s Human Rights Code – Questions and Answers

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March 18, 2020

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The OHRC has developed a series of questions and answers for understanding your human rights and obligations during the COVID-19 pandemic. These questions and answers cover the rights and responsibilities of employers and employees, tenants and landlords, as well as residential institutions.

Disclaimer: The answers to the questions posed do not constitute legal advice. The OHRC continues to monitor the evolving situation and will update or add to these questions and answers on an ongoing basis as needed.

 

  1. Is it illegal for my employer to terminate me if I can’t work because of COVID-19?

    • Under the Human Rights Code (Code), an employer may not discipline or terminate an employee who has been diagnosed with COVID-19 or is perceived to have COVID-19 (because, for example, they are exhibiting certain symptoms). Similarly, an employer may not discipline or terminate an employee if they are 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.
    • The federal government has called for all travellers entering Canada to self-isolate for 14 days upon entry with exceptions for workers who are essential to the movement of goods and people, and that all Canadians, as much as possible, should stay home.
    • In these circumstances, employer absenteeism policies must not negatively affect employees.
    • On March 19, 2020, Ontario passed Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, which allows for job-protected leave without pay to employees under medical investigation, supervision or treatment, or in isolation or quarantine, or who need to be away from work to care for children because of school or day care closures or to care for other relatives, or are affected by travel restrictions, due to COVID-19. The new measures are retroactive to January 25, 2020.
    • Employees who cannot work because of COVID-19 may also be entitled to sick or disability or other leave benefits that may be available from their employer under the federal Employment Insurance (EI) program. Eligible workers with no or limited paid-leave benefits through their employers can apply for up to 15 weeks of EI benefits if they cannot work for medical reasons. The federal government has announced that it is eliminating the waiting period entirely for workers quarantined due to COVID-19. Visit the federal government website for more information.
    • Employees also have other rights under the Employment Standards Act regarding termination (e.g. severance and notice of termination). Visit the Ministry of Labour and Skills Development website for more information. Employees may also have rights regarding termination under common law.

 

  1. Can my employer lay me off if there is no work to do because of COVID-19? Does my employer still have to pay me?

    • The Code does not require employers to pay employees if they are not working or if there is no work for them to do because of the impacts of COVID-19. It is not discrimination under the Code if an employer needs to lay off employees because there is no work for them to do as a result of the impacts of COVID-19.
    • The Employment Standards Act sets out rights and obligations regarding payment of wages, temporary layoffs, constructive dismissal and termination. Visit the Ministry of Labour and Skills Development website for more information.

 

  1. Can my employer refuse to let me work because of COVID-19?

    • An employer should not send an individual employee home, or ask them not to work because of concerns over COVID-19, unless the employer’s concerns are reasonable and consistent with information from medical and Public Health officials.
    • The OHRC and relevant human rights laws recognize the importance of balancing people’s right to non-discrimination and civil liberties with public health and safety, including the need to address evidence-based risks associated with COVID-19.
    • Therefore, the right to be free from discrimination can be limited under the Code (for example, where health and safety risks are serious and would amount to undue hardship).
    • Employers also have obligations for workers’ health and safety on the job under the Occupational Health and Safety Act. Visit the Ontario Ministry of Labour, Training and Skills Development website for more information, including how to contact the Ministry.
    • Employers should ensure any restrictions on employees are consistent with up to date information from medical and Public Health officials, and are justified for health and safety reasons.

 

  1. Does my employer have to accommodate me if I test positive or if I become sick because of COVID-19?

    • The OHRC’s policy position is that the Code ground of disability is engaged in relation to COVID-19, as it covers medical conditions or perceived medical conditions that carry significant social stigma.
    • Employers have a duty to accommodate employees under the Code in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.
    • 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).
    • On March 19, 2020, Ontario passed Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, which allows for job-protected leave without pay to employees under medical investigation, supervision or treatment, or in isolation or quarantine, or who need to be away from work to care for children because of school or day care closures or to care for other relatives, or are affected by travel restrictions, due to COVID-19. The new measures are retroactive to January 25, 2020.

 

  1. Does my employer have to accommodate me if I need to stay home with my kids or an ill family member?

    • An employer must accommodate an employee who has care-giving responsibilities up to the point of undue hardship.
    • These care-giving responsibilities, which relate to the Code 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.
    • Potential accommodations can include allowing employees to work from home where feasible, permitting employees to work alternate hours, allowing employees to take leaves from work, or other flexible options.
    • On March 19, 2020, Ontario passed Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, which allows for job-protected leave without pay to employees under medical investigation, supervision or treatment, or in isolation or quarantine, or who need to be away from work to care for children because of school or day care closures or to care for other relatives, or are affected by travel restrictions, due to COVID-19. The new measures are retroactive to January 25, 2020.

 

  1. Do I need to get a medical note to support my accommodation request?

 

  1. Schools are closed and childcare services are shutting down because of COVID-19. I can’t afford other daycare or time off work to stay home with my kids. Does my employer have to help me? What financial assistance options do I have?

    • The Code does not require employers to provide additional financial assistance to employees who are impacted by COVID-19.
    • However, the Ontario government has announced that it is reviewing current access and eligibility to emergency assistance through the Ontario Works (OW) program to support individuals who are not able to meet their basic living expenses as a result of COVID-19.
    • The federal government has announced financial measures to directly support individuals and businesses.

 

  1. Can my employer insist that I work despite the current situation with COVID-19?

    • Employers are entitled to expect that employees will continue to perform their work unless there is a legitimate reason why they cannot. An example of a legitimate reason can include situations where it may not be safe for the employee to be at work.
    • In these circumstances, the employer should explore alternative options for how the employee may still continue to perform productive work for the employer (for example, by working from home, working alternate hours or other flexible options).
 
  1. Can I refuse to work if I think my workplace is unsafe because of COVID-19?

  • Employees and employers have rights and obligations under the Occupational Health and Safety Act for workers’ health and safety on the job. This Act gives a worker the right to refuse work that they believe is unsafe for them or another worker. Visit the Ontario Ministry of Labour, Training and Skills Development website for more information about the procedure for a work refusal and information about how to contact the Ministry.

 

  1. Can my employer make me do a medical test for COVID-19 like take my temperature as a condition for working?

  • The OHRC’s policy position is that medical assessments to verify or determine an employee’s fitness to perform on the job duties may be permissible in these circumstances under the Code.
  • However, information on medical tests may have an adverse impact on employees with other disabilities. Employers should only get information from medical testing that is reasonably necessary to the employee’s fitness to perform on the job and any restrictions that may limit this ability, while excluding information that may identify a disability.
  • Employees and employers also have rights and obligations for workers’ health and safety on the job under the Occupational Health and Safety Act. Visit the Ontario Ministry of Labour, Training and Skills Development website for more information, including how to contact the Ministry.

 

  1. I am a contract worker. Do I have the same rights as employees under the Code related to COVID-19?

  • The right to be free from discrimination in employment under the Code includes full-time and part-time work, volunteer work, student internships, special employment programs, probationary employment, and temporary or contract work.
  • The definition of “employee” in the Code is interpreted broadly enough to include contractors, even if they would not be considered “employees” for the purposes of other legislation.
  • Contractual relationships are also protected as a distinct “social area” under the Code. A contract is an oral or written agreement that is legally enforceable. Employment arrangements are a form of contract. The Code covers all types of contracts, including those with independent contractors and subcontractors, and contracts that outline terms of employment.
  • For more information, see Section III.5 of the OHRC’s publication, Human Rights at Work.

 

  1. I am a tenant who is not working because of COVID-19. What protections exist, if any, if I can’t pay the rent? Can I opt out of my rental agreement if COVID-19 impacts persist?

  • Negative treatment of tenants who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, could be discriminatory and prohibited under the Code.
  • The OHRC’s Policy on human rights and rental housing says that before initiating eviction proceedings, or any other measure that may affect a tenant in a negative way, a housing provider is expected to consider whether a Code-related need exists, and whether that need has been accommodated appropriately. For example, if a tenant fails to make his rent payment on time because he is in the hospital, the housing provider allows the tenant to pay his rent late as it is not an undue hardship to do so.
  • Tenants and landlords also have rights and responsibilities under the Residential Tenancies Act. Visit the Ontario government website for more information.
  • The Ontario government has announced that no new eviction orders will be issued until further notice. The Ontario government has also asked Sheriff’s offices to postpone any scheduled enforcement of eviction orders set for this week.

 

  1. Can residential institutions related to child welfare, youth justice, criminal justice, long-term care, retirement homes, etc. impose restrictions such as limiting individuals from visiting their loved ones?

  • Residential facilities disproportionately house people who identify with protected grounds under the Code, including Indigenous and racialized people, people with disabilities and addictions, elderly people, children and youth, and other vulnerable groups.
  • Under the Code, these individuals have a right to be free from discrimination, and under the Charter, these individuals have further rights to privacy; liberty and security of the person; the right to be free from arbitrary detention; and cruel and inhuman treatment, subject to reasonable limits.
  • The OHRC and relevant human rights laws recognize the importance of balancing individuals’ rights to non-discrimination and civil liberties with public health and safety, including the need to address evidence-based risks associated with COVID-19.
  • Restrictions such as limiting individuals from visiting their loved ones may be justified for health and safety reasons, particularly if such restrictions are based on up to date information from medical and Public Health officials. However, there may be instances where certain individuals may require accommodations, which could include increased access to phones or Skype for contact with loved ones.
  • Visit the Ontario government webpage on COVID-19 for the latest information about supports and restrictions on visitor and other access to government-run or regulated residential facilities.