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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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Last updated October 09, 2020

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 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. 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.

 

2. 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.
  • If an employee has to stop working because of COVID-19, they may be eligible for federal income support. Visit the federal government’s benefits website for more information.

 

3. 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.

 

4. 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 measures are retroactive to January 25, 2020.

 

5. 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 measures are retroactive to January 25, 2020.

 

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

 

7. My kids are not back in school or at their childcare service 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.
  • Individuals who are in a crisis or emergency situation, because of COVID-19 for example, and do not have enough money for things like food and housing, may be eligible for emergency assistance from the Ontario government.
  • If an employee has to stop working because of COVID-19, they may be eligible for federal income support. Visit the federal government’s benefits website for more information.

 

8. Schools, daycare centres and workplaces are re-opening. Given in-person attendance at school is optional for the 2020 – 2021 school year, I am electing remote learning for my children. Does my employer need to accommodate me?

  • An employer has an obligation to consider and accommodate the individual needs of an employee who has care-giving responsibilities, based on family status and/or disability, up to the point of undue hardship under the Code.
  • Depending on the individual circumstances, a parent may need to stay home from work because their child cannot go to school or day care for a reason related to the pandemic including, but not limited to, situations where the child or another family member is ill or in self-isolation or is at higher risk of infection, or schools or day cares are closed.
  • Accommodations may be necessary to avoid situations that would result in a real disadvantage to the parent/child relationship or put parents in a position of having to choose between working and caregiving.
  • Potential accommodations can include allowing employees to work from home, work alternate hours, take leaves from work, or other flexible options, where feasible.
  • 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 related circumstances including but not limited to school or day care closures, or to care for other relatives, or are affected by travel restrictions, due to COVID-19. The measures are retroactive to January 25, 2020.

 

9. 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).

 

10. Can my employer redeploy me to do other work not related to my current job because of the COVID-19 pandemic?

  • When invoked during a pandemic like COVID-19 for example, orders may be made under Ontario’s Emergency Management and Civil Protection Act and related regulations permitting an employer to redeploy an employee to do other work. While the declared emergency came to an end on July 24, 2020, Ontario has continued a number of time-limited work redeployment orders under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020.
  • At the same time, an employee may have a legitimate Code-related reason why they cannot do the other work, or they may need an accommodation to do the other work, based on their disability, family status and/or age. This would depend on the nature of the other work, related health and safety risks, the person’s individual circumstances and current advice from public health officials during the pandemic.
  • If an employee is unable to do the other work, or their current job, for Code-related reasons, the employer should explore possible accommodation options, including whether there is other productive work the employee can perform.
  • Visit Ontario’s website for more information.

 

11. 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.

 

12. Can an employer, service provider or landlord make me do a medical test related to COVID-19 like take my temperature?

  • The OHRC’s policy position is that the Code ground of disability is engaged when employers, housing or other service providers impose medical testing, such as taking your temperature, or having you take a COVID-19 test. Medical testing to determine fitness to safely perform work, or protect people receiving services or living in congregate housing, may be permissible under the Code if the testing is shown to be effective and necessary in circumstances such as a pandemic.
  • At the same time, the use of information from medical tests may have a negative impact based on a person’s disability. Organizations should only seek information from medical testing that is reasonably necessary to protect everyone’s health and safety, while excluding unnecessary information that may identify a pre-existing disability.
  • Any form of medical testing should be effective at assessing an employee’s ability to safely perform work, or to protect people receiving services or living in congregate housing. Only a qualified person should conduct medical tests.
  • A test result must not lead to automatic negative consequences such as employee discipline or termination, complete denial of service or eviction from housing, because, for example, a person is exhibiting certain symptoms or a test shows they have, may have had, or have not yet been exposed to COVID-19.
  • Organizations have a duty under the Code to accommodate people who are negatively impacted by COVID-19 test results, unless it would amount to undue hardship based on cost or health and safety.
  • Everyone involved should be flexible in exploring accommodations, including alternative ways a person might continue to safely work, receive a service or live in congregate housing.
  • Organizations should make clear the reasons why a medical test is needed in the circumstances, and ensure prior, informed consent.
  • Organizations must explain how they will use and dispose of information from a test and protect the person’s privacy as much as possible.
  • Organizations should only require the least intrusive means of testing necessary in the circumstances.
  • In addition, employees have rights and employers have obligations for workers’ health and safety 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.

 

13. Can an employer, service provider or landlord require me to wear a mask because of COVID-19?

  • Many Ontario municipalities have passed by-laws requiring face coverings on public transit, in common spaces of apartment and condo buildings and in enclosed public spaces. Masks are also required on public transit operated by Metrolinx (eg. GO Transit, UP Express). Ontario further recommends that people use a face covering (non-medical mask such as a cloth mask) to reduce the risk of transmission of COVID-19 when physical distancing and keeping two-metres apart from others may be challenging or not possible.
  • The OHRC's policy position is that any requirements related to health and safety and COVID-19, such as wearing a mask, using other protective equipment or following a procedure to perform work safely, or to protect people receiving services or living in housing, do not generally cause concern under the Code.
  • At the same time, employers, housing and other service providers should recognize that health and safety requirements such as masks may have a negative impact on vulnerable populations identified by a ground under the Code who may not have access to such equipment. Other people may not be able to use the equipment or follow a procedure because of their disability or for another Code-related reason.
  • 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.
  • The Ministry of Health advises that face coverings should not be placed on or used by children under the age of two, anyone who has trouble breathing, or anyone who is unable to remove it without assistance.
  • Organizations have a duty under the Code to accommodate these types of individual needs related to legitimate COVID-19 requirements, unless it would amount to undue hardship based on cost or health and safety. For example, it may be necessary to provide free masks or other means so that people with disabilities can safely perform work, receive services or live in congregate housing. For example, offering curbside pickup would generally allow a person to receive a retail service even if, because of their disability, they are unable to wear the required mask to enter a store.
  • An inability to access or use a mask or other equipment, or to follow a health and safety procedure, must not lead to automatic negative consequences such as employee discipline or termination, complete denial of service or eviction from housing.
  • No one should experience harassment or other discriminatory treatment based on a Code ground because they are unable to wear a mask, or choose to wear, or not wear, a mask, or require someone else to wear a mask based on advice from public health officials.
  • Everyone involved should be flexible and explore whether individual accommodation is possible, including alternative ways a person might safely continue to work, receive a service or live in congregate housing.
  • Organizations should make clear the reasons why a mask or other equipment or procedure is needed in the circumstances.
  • In addition, workers have rights and employers have obligations for workers’ health and safety 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.
  • For information about face coverings and how to properly wear, fit, remove and clean your non-medical face mask, visit the Ontario COVID-19 website.

 

14. Should exemptions for face covering requirements be allowed and should exemption cards be required?

  • Exemptions to mask requirements may be necessary to accommodate some individuals under Ontario’s Human Rights Code.
  • People with disabilities might be expected to verify their Code related needs, depending on the situation.
  • Exemption cards or other means may help identify and promote awareness that some people cannot wear masks for legitimate reasons.
  • At the same time, any such requirements should respect a person’s dignity, be practical, maximize privacy and not be onerous or stigmatize individuals.
  • The Toronto Transit Commission’s voluntary approach for use of its exemption cards and buttons is a good best practice example.

 

15. 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.

 

16. 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.
  • The Code would prohibit housing providers from targeting an individual or group of tenants for eviction based on any ground of discrimination.
  • Tenants and landlords also have rights and responsibilities under the Residential Tenancies Act. Visit the Ontario government website for more information.
  • The Protecting Tenants and Strengthening Community Housing Act, 2020 encourages landlords to try to negotiate a repayment agreement with a tenant before seeking eviction if rent has not been paid during COVID-19. Visit Ontario’s website for more information.

 

17. 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, such as increased access to phones or Skype for contact with loved ones, or continued access to their support persons.
  • Under the Code, care institutions have a duty to accommodate a person’s disability-related needs, unless doing so would cause undue hardship based on cost or health and safety.
  • The OHRC has taken the position that a care institution’s interpretation of “essential visitor” should be broad enough to include paid and unpaid support persons, attendants and communication assistants, authorized by the patient or resident or their guardian, who provide supports that are essential to enable a patient or resident with a disability to access care services and communicate effectively with care providers.
  • 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.

 

18. Can retailers refuse cash payment during the COVID-19 pandemic?

  • Requirements related to health and safety during the COVID-19 pandemic, like contactless payment in place of cash, do not generally cause concern under Ontario’s Human Rights Code if they are effective and necessary in the circumstances.
  • At the same time, these requirements may have a negative impact on vulnerable populations identified by a Code ground who disproportionately experience poverty. Some people from vulnerable groups may not have the means to use electronic payment. For example, people who are homeless may not get a bank card without an account or permanent address.
  • Census data and Ontario’s Poverty Reduction Act recognize that groups like immigrants, women, single mothers, people with disabilities, Indigenous peoples and people from racialized communities are more likely to experience poverty. Bank of Canada research shows that people with lower levels of income are more likely to use cash.
  • Even where COVID-19 requirements are legitimate, organizations still have a duty to explore options and accommodate individual needs related to the Code, unless it would amount to undue hardship based on cost or health and safety.
  • An inability to follow a COVID-19 health and safety requirement like contactless payment should not lead to complete denial of service. Without compromising the health and safety of employees and customers, retailers should look for ways a person might safely pay for goods or services with cash if that is their only option.
  • The Bank of Canada asks retailers to continue accepting cash. Refusing cash purchases outright will put an undue burden on people who depend on cash and have limited payment options. Risk can be mitigated in retail settings using a variety of methods, including ensuring access to hand hygiene for all employees.

 

19. Can an employer, service provider or landlord require me to use the “COVID- Alert” exposure notification app?

  • In partnership with the federal government, Ontario has released COVID Alert, an exposure notification app that individuals can use. More information about the COVID-Alert app can be found here.
  • While Ontario is encouraging use of the COVID Alert app, use of the app is voluntary.
  • The OHRC’s policy position is that the Code ground of disability is engaged when employers, housing or other service providers impose medical testing, or require medical information related to a disability, such as requiring the use of and information from a contacting tracing app.
  • If any employer, housing or service provider is considering requiring use of COVID Alert or another pandemic tracing app to access housing, employment or receive a service, they would need to demonstrate that this is a bona fide (legitimate) requirement to ensure health and safety. At this time, and with limited information on the accuracy and efficacy of COVID Alert, it would likely be difficult to show that requiring its use would be a bona fide health and safety requirement.
  • Employers, housing and other service providers should recognize that health and safety requirements such as requiring the use of, or information from, a contact tracing app, may have a negative impact on vulnerable populations identified by a ground under the Code.
  • No one should experience pressure, harassment or other discriminatory treatment linked to a Code ground because they choose to use or not use the app, or are unable to use the app. For instance, some Code protected groups may feel more targeted or stigma relating to COVID-19, or more pressure to adopt measures like the COVID Alert app.
  • The OHRC cautions that individuals should not be asked to disclose information about whether they have received an exposure notification through the app. This includes being asked to show a police, security or public safety officer (or anyone else) the information on their app.

 

20. Can my employer ask me if I have tested positive for COVID-19? Can they disclose that information and my name to other employees?

  • Generally, an employer does not have the right to know a person’s confidential medical information, or disclose that information to others.
  • However, in situations like the COVID-19 pandemic, in some cases it may be necessary for an employer to request and disclose information about an employee’s health to others, if there are compelling circumstances affecting employee health and safety.
  • The OHRC’s policy position is that the Code ground of disability may apply when employers have requirements related to COVID-19. Asking employees to disclose whether they have tested positive for COVID-19 may be allowed under the Code to determine fitness to safely perform work, or to protect people receiving services or living in congregate housing run by the employer.
  • Employers would need to justify an intrusion on a person’s privacy based on the health and safety risks in their workplace. It is important for employers to consider whether risks to workplace health and safety outweigh the severe impacts on employees’ privacy, and find ways to balance these interests.
  • Making overbroad requests and sharing medical information may undermine the dignity and privacy of employees with disabilities. Request and share medical information only in a way that intrudes as little as possible on a person’s privacy, and does not go beyond what is necessary to ensure employees are healthy and safe and/or to accommodate an employee’s individual needs.
  • It is particularly important that medical information is handled in a way that maximizes confidentiality. When necessary, employers should only disclose that an unnamed employee has tested positive for COVID-19. Any information that could identify the employee should not be disclosed to other employees unless there is an urgent health and safety justification to do so at that time.
  • Medical information about an employee and their identity should only be shared with staff who need the information to help manage a situation, or where required by law.
  • The Code and OHRC policies also recognize that employers have a duty to accommodate the needs of employees who test positive for COVID-19, and may request medical information to verify an employee’s need for individual accommodation.
  • Requesting and disclosing medical information should also be done in accordance with privacy laws. Employers should be guided by privacy principles, such as consent, nature, purpose and consequence of disclosure.
  • For more information about medical information, privacy and the Code, see sections 8.7 and 8.8 in the OHRC’s Policy on ableism and discrimination based on disability.
  • For more information about privacy laws and how they apply to public and private employers, see: Information and Privacy Commissioner of OntarioOffice of the Privacy Commissioner of Canada.
  • For more information about employer and employee rights and obligations under the Occupational Health and Safety Act, see the Ontario Ministry of Labour, Training and Skills Development.