Disability Accommodations and the Limits of the COVID-19 Vaccine Card Orders

Will service providers bear a duty to accommodate people unable to get vaccinated due to their disabilities? The uncertainty surrounding the question is discussed in my post regarding the lack of accommodation for unvaccinated people with disabilities in the new public health orders requiring proof of vaccination. It may depend on whether the mandatory vaccination card orders apply. This post provides information on the limits of the orders’ applicability.

The BC Government Website has their own summary of where and when the orders apply here. It is only a summary. The website is not the law itself. This post offers information on what is stated in the orders. It is only legal information and should not be taken as advice.

General Organization of the Orders

Service providers and unvaccinated potential service users are likely to be confused about exactly who can attend what facilities and services, when. The government announcement on August 23, 2021 framed the vaccination passports as being required primarily at “non-essential” services. However, the orders are framed differently. One order applies to post-secondary housing (the “Post-Secondary Housing Vaccine Order”), the second to food and liquor service premises (the “Food and Liquor Services Vaccine Order”), and the third to “gatherings and events” (the “Gatherings and Events Vaccine Order”). Together, I will call these the “Orders.”

Determining whether one of these orders applies, from a strictly legal standpoint, is not so much about determining whether the service is essential or non-essential. With respect to the third order, the determination is about whether the service constitutes an event or gathering covered by the order.

Who the Orders do not Apply to

The orders do not apply to people who are under 12-years of age.

These three orders do not require employees/staff to have a vaccine passport (unless, for example, the staff member attends a restaurant as a patron, or a faculty member lives in university housing). They are directed at residents who reside in post-secondary housing, patrons of food and liquor serving premises, and persons who attend “events” as participants.

However, note that there are two other provincial health officer orders (here and here) that do require proof of vaccination for health care workers in long term care and assisted living facilities, private hospitals, and provincial mental health facilities. Those two orders do not specifically provide for disability accommodations on human rights grounds, although human rights protections may still exist.

Post-Secondary Housing Exceptions

The order regarding vaccine card requirements in post-secondary housing applies to most student housing at universities and colleges in British Columbia.

As per the definition of “post-secondary housing” in the order, “family or apartment housing” for students is not included. As such, it seems that the Post-Secondary Housing Vaccine Order is mainly meant to target dorms rather than family on-campus housing and apartments.

Food and Liquor Services Exceptions

The Food and Liquor Services Vaccine Order applies to food establishments that have table service/patron seating. Restaurants (including buffets) and cafes with table service are included. Food primary or liquor primary establishments such as pubs, bars, lounges, night clubs, private clubs, and liquor manufacturing facilities with tasting rooms or private seating are included.

According to the preamble of the Food and Liquor Services Vaccine Order, paragraph M, it does not apply to:

Gatherings and Events Applicability

The Gatherings and Events Vaccine Order mandates proof of vaccination for participants in certain indoor “places” where “events” are held.

Applicable Places

A “place” is defined in the order as a venue, including the following places (but not including a “private residence”):

**vacation accommodation is defined in the order as: a house, townhouse, cottage, cabin, apartment, condominium, mobile home, recreational vehicle, hotel suite, tent, yurt, houseboat or any other type of living accommodation, and any associated deck, garden or yard, in which a person is residing, but which is not the person’s primary residence.

Applicable Event Purposes

The Gatherings and Events Vaccine Order defines “event” so that the order only applies to activities happening at places for the following Applicable Event Purposes:

For some clarity, the definition of “event” in the vaccine card portion of the order stipulates that the following event types constitute events held for the Applicable Event Purposes:

a ticketed sports activity, concert, theatrical production, dance or symphony performance, festival, conference, convention, trade fair, home show, workshop, wedding reception, funeral reception not at a funeral home, and a sponsored, ticketed party

Number of Participants Involved

When it comes to having to provide proof of vaccination, the Gatherings and Events Order only applies to “gatherings” of participants in the activity. Exactly what “gathering” means is not set out in the order, but, presumably, there would need to be more that one participant involved in the activity for it to constitute a gathering.

As described above, when the event constitutes a gathering of 50 or less people and is not for the purpose of “an adult sports activity” or “an exercise, fitness or dance activity or class,” the Gatherings and Events Order does not apply.

Inside v. Outside

As per section D. 2. of the order, proof of vaccination applies only to activities occurring inside. Per section A.2. of the order, an event held in a tent with two or more sides is an inside event, and per section A.3., an event held in a tent without sides is an outside event. It’s unclear whether the definitions regarding tents and inside and outside events apply to the proof of vaccination section of the order. Either way, for proof of vaccination requirements to apply, the activity needs to be happening inside.

Specific Exceptions

The Gatherings and Events Vaccine Order includes a specific list of who and what activities it is not meant to apply to in the preamble at paragraph L. The specific exceptions are as follows:

Summary Checklist

Taken together, the following checklist describes the conditions that need to be met for the Gatherings and Events Vaccine Order to be applicable:

If any of the conditions of the checklist are not met, the Gatherings and Events Vaccine Order likely does not apply.

Do the BC COVID-19 Vaccination Passport Orders Prevail Over Human Rights Legislation Requiring Disability Accommodation?

The law regarding BC’s COVID-19 vaccination passport and entry into various establishments in the province was published today. This post discusses the publication of the relevant orders, their lack of human rights (disability) accommodations, the issue of whether they prevail over the discrimination protections set out in the Human Rights Code, their relationship with the Charter, and the protections available to service providers who follow them. Activities that are not covered by the orders will be set out in a later post.

Publication of the Orders

While BC Premier John Horgan, Provincial Health Officer Dr. Bonnie Henry, and Health Minister Adrian Dix announced the upcoming provincial health order(s) on August 23, 2021, the law itself was not published here on the BC Office of the Provincial Health Officer website until yesterday evening and this morning. The Provincial Health Officer Order regarding post-secondary institution housing and the COVID-19 vaccine cards is dated September 9, 2021 but was published yesterday evening. The Provincial Health Officer Orders regarding the COVID-19 vaccine passport and food and liquor serving premises is dated yesterday September 10, 2021 but was published today, and the Order regarding COVID-19 vaccination passports and “gatherings and events” is also dated yesterday but was published this morning. In this post, I will call all three of these, taken together, the “Orders.”

Lack of Human Rights (Disability) Accommodations

Further to my post of August 23, 2021 and in line with what Dr. Henry stated at the press conference regarding the anticipated Orders on August 23, 2021, the Orders do not provide exemptions for people who cannot get vaccinated or provide proof of vaccination for medical reasons. The only people who the orders make exemptions for are those under 12 years of age. This means that the orders will conflict with the BC Human Rights Code, which prohibits discrimination and requires service providers to accommodate people with disabilities to the greatest extent possible. The orders also conflict with the guidance of BC’s Human Rights Commissioner, who released a policy guidance document in July, 2021 affirming that service providers must seek to accommodate people who are unable to get vaccinated on the grounds of their BC Human Rights Code protected characteristics (disability, religion, family status, etc.).

The orders are more restrictive than the current order regarding face coverings in indoor spaces, which does include human rights exemptions for people with disabilities, as follows:

Requests to Reconsider Order

Though there is not specific provision for disability accommodations in the Orders, there is mention that persons who want to avoid complying with the Orders can ask the Provincial Health Officer (Dr. Bonnie Henry) directly for reconsideration of the Orders applying to them. The process is set out in section 43 of the Public Health Act as follows:

The manner of making requests is set out by the Provincial Health Officer as follows:

As such, the Order can only be varied in relation to certain individuals in a limited set of circumstances, when a request is made to the Provincial Health Officer with documentation from a medical practitioner that the health of a person would be “seriously jeopardized” if the person were to receive the vaccine, as well as the person’s relevant medical records. And consideration of these requests is discretionary; there’s no guarantee for an exemption even with the required medical documentation.

Do the Orders Prevail Over the Human Rights Code?

There is uncertainty surrounding whether service providers who are in breach of the Human Rights Code due to acting in accordance with the Public Health Officer orders will be shielded from liability for discrimination. On the one hand, there are Public Health Act provisions meant to protect those who are following the Orders from legal and other adverse action. However, at the same time, there is a paramountcy provision in the Human Rights Code stipulating that if there is a conflict between the Human Rights Code and another enactment (such as the Public Health Act), the Human Rights Code prevails.

Public Health Act Provisions Regarding Immunity from Legal Proceedings

The provisions of the Public Health Act that give immunity to service providers responsible for the vaccine passport screening are as follows:

As such, it may be that service providers acting in accordance with the order but contrary to the Human Rights Code cannot have a human rights complaint brought against them successfully UNLESS they are acting in bad faith. It is a high threshold for finding bad faith conduct and it would need to involve something uniquely egregious.

However, sections 92 and 93 of the Public Health Act may also be read narrowly so that they only capture court actions (for example in tort or contract) for damages, but not human rights complaints brought in the BC Human Rights Tribunal. Or the provisions could be interpreted so that they allow a complainant to successfully bring a human rights complaint, but not be entitled to any damages.

Further uncertainty comes with analyzing the Public Health Act provisions in the context of the Human Rights Code‘s paramountcy provision, and that is discussed further, below.

Additional Public Health Act Protection from Adverse Action for Service Providers

In addition to being shielded from legal proceedings, potentially including human rights complaints, service providers acting in accordance with the orders are also generally shielded from any “adverse action,” which is defined as “an action that would adversely affect, or that threatens to adversely affect, the personal, financial or other interests of a person, or a relative, dependent, friend or business or other close associate of that person, and includes any prescribed action.” This means that if someone feels aggrieved by a service provider carrying out an order and so attempts to take adverse action against that service provider in some way, they’re potentially contravening the Public Health Act section 94. One such contravention might include the recent rumours that opponents of the vaccination passports plan to call restaurants carrying out the order and make fake take out orders to harm the businesses.

It is possible that this provision may also be interpreted as preventing potential complainants from successfully bringing a complaint under the BC Human Rights Code, because doing so could potentially be interpreted as an “adverse action.” However, it does not appear that the intention of this provision was to capture human rights complaints, and this section of the Public Health Act is so broad that it may potentially be unconstitutional. And again, further uncertainty comes with analyzing the Public Health Act provisions in the context of the Human Rights Code‘s paramountcy provision, and that is discussed further, below

As per section 99 of the Public Health Act, contraventions of section 94 are an offence. Section 99 offences can come with alternative penalties under section 107 such as paying a person compensation and/or, additionally under section 108 of the Public Health Act, a fine of up to $25,000, imprisonment of up to 6 months, or both.

No Mention of Human Rights Code in Events and Gatherings Order

Interestingly, there is no mention of the BC Human Rights Code in the third order regarding events and gatherings. In contrast, the other two Provincial Health Officer orders regarding food and liquor establishments and university housing have included a provision in their preamble regarding the Provincial Health Officer’s consideration of the Human Rights Code. For example, in the preamble to the order regarding vaccine passports at university housing, the following is stated about the Human Rights Code:

O. In addition, I recognize the interests protected by the Human Rights Code, and have taken these into consideration when exercising my powers to protect the health interests of residents, staff and faculty at post-secondary institutions;

Human Rights Code Paramountcy Provision

Although there is no mention of the Human Rights Code in one of the Orders, the code still generally applies when someone experiences an adverse effect (such as being denied entry to a venue) as a result of their disability not being accommodated by a service provider.

The Public Health Act sections potentially shielding service providers from human rights code liability for discrimination, or having to pay damages for discrimination, must be read and analyzed with reference to section 4 of the Human Rights Code, which stipulates as follows:

Code prevails

4   If there is a conflict between this Code and any other enactment, this Code prevails.

Given this section of the Human Rights Code, a complainant could argue before the Human Rights Tribunal that although the Orders mandate vaccination cards without any reasonable exemption to accommodate for disability, this conflicts with the Human Rights Code, which requires accommodation. Per section 4 of the Human Rights Code, the code, with it’s accommodation requirements, prevails.

Further, a complainant could also potentially argue before the Human Rights Tribunal that although the Public Health Act provides immunity from legal proceedings for damages and protection from adverse actions to service providers when they follow the Orders, this conflicts with the Human Rights Code, which allows complainants to bring a human rights complaint, for damages, when they have been discriminated against. Per section 4 of the Human Rights Code, the prevailing provisions are those of the Human Rights Code that allow a complainant to bring a human rights complaint for damages.

Constitution/Charter of Rights and Freedoms Consideration

All three of the recent orders regarding vaccination passports do include a provision regarding the Canadian Charter of Rights and Freedoms. I often hear people bringing up the issue of these types of orders violating their charter rights and therefore being of no force and effect. That is not necessarily true. Under Canada’s Charter, it is possible for law to violate constitutionally protected rights, but in a way that is considered justified per the Charter. And so in that case, a court considering a Charter challenge can uphold a law even though it was considered unconstitutional, because the Court finds this justified under the Charter. The Orders bring up this issue by stating as follows in their preambles:

I further recognize that constitutionally-protected interests include the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms, including the right to life, liberty and security of the person, along with freedom of religion and conscience, freedom of thought, belief, opinion and expression. These rights and freedoms are not, however, absolute and are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. These limits include proportionate, precautionary and evidence-based restrictions to prevent loss of life, serious illness and disruption of our health system and society. When exercising my powers to protect the health of the public from the risks posed by COVID-19, I am aware of my obligation to choose measures that limit the Charter rights and freedoms of British Columbians less intrusively, where doing so is consistent with public health principles;

Activities Not Covered By the Orders

Service providers and unvaccinated potential service users are likely to be confused about exactly who can attend what facilities and services, when. The government announcement on August 23, 2021 framed the vaccination passports as being required primarily at “non-essential” services. However, the orders are framed differently. One order applies to university housing, the second to food and liquor service premises, and the third to “gatherings and events.”

I plan on discussing what is not covered by the Orders in a separate post, which will follow.

BC previously warned that “birth alert” system disproportionately affecting Indigenous parents was “illegal and unconstitutional”

“Birth alerts” in BC refer to the controversial practice where social workers flag expectant parents to hospital staff without their consent when they believe the expectant parent poses a risk to the newborn. The birth alert directs hospital staff to alert the social worker when the baby is born. Ministry of Children and Family Development (“MCFD”) records from 2019 show that birth alerts result in the removal of a newborn from their parents “approximately 28% of the time.” Indigenous families are disproportionately affected by the birth alert system. According to MCFD’s records, 58% of parents impacted by birth alerts in 2018 were Indigenous. Birth alerts have been referred to in a report by the National Inquiry Into Missing Indigenous Women and Girls as “racist and discriminatory” and a “gross violation of the rights of the child, the mother, and the community.” Former Representative for Children and Youth Mary Ellen Turpel-Lafond stated the following to IndigiNews about the practice:

“Apologies and amends are necessary, as there has been harm done, including promoting the stereotypes that Indigenous families require intense surveillance because they cannot safely care for their own children,”

https://indiginews.com/vancouver-island/birth-alerts

On May 6, 2019, the BC Attorney General’s office sent a memo to the MCFD confirming that:

“the use of hospital alerts, and other activities involving the disclosure of information without the consent of expectant parents is both illegal and unconstitutional.”

https://indiginews.com/vancouver-island/birth-alerts

However, the practice was not banned by the BC government until September 16, 2019.

If a newborn has been traumatically removed from your family shortly after birth, you may not even know yet that the removal resulted from a birth alert. According to MCFD, it has not advised families that their privacy rights have been breached with the issuance of birth alerts.

One spokesperson for MCFD claimed in a statement to IndigiNews that this was because MCFD did not want to “retraumatize” affected families by providing notifications of past birth alerts. In my view, this response only reinforces that the MCFD takes a discriminatory and paternalistic approach in its interactions with Indigenous families. The baby alert approach promoted a stereotype that Indigenous families are not capable of safely caring for their own children. The comment from the MCFD about retraumatization again reinforces a stereotype that Indigenous families are not capable of deciding what is best for them.

The MCFD should notify families that their privacy was breached by the issuance of a birth alert and then the families can decide for themselves whether they wish to potentially face retraumatization by going through a process of seeking an apology and amends. MacIsaac and Company is currently investigating potential claims regarding this matter.

 

Disability Discrimination Complaint Against Maple Ridge Hyundai Dismissed

Cardiff, UK: June 02, 2020: Hyundai Car Dealership. The Hyundai Motor Company, commonly known as Hyundai Motors, is a South Korean multinational automotive manufacturer. Illustrative Editorial

In reasons released today regarding the case of Verozinis v Kot Auto Group dba Maple Ridge Hyundai, 2020 BCHRT 156, Tribunal Member Norman Trerise dismissed a human rights complaint against the Hyundai car dealership located in Maple Ridge, BC.

The Complainant, Spyros Verozinis, alleged that when he attended the Maple Ridge Honda Dealership with his wife to buy a vehicle, the Finance Manager engaged in high pressure communications regarding the details of the vehicle and he was unable to fully understand what was occurring due to his disability – congenital deafness. He alleged that he ended up purchasing a vehicle he would not have purchased if his disability were not taken advantage of and he fully understood the terms of the sale. As such, he complained he was discriminated against on the grounds of mental and physical disability in the area of service contrary to the BC Human Rights Code.

Following a 2-day hearing, the Tribunal found that the Complainant’s mental and physical disabilities were not a factor in him being sold the vehicle. Mr. Verozinis was successful in establishing that he had a physical or mental disability. However, he failed to established that he experienced adverse treatment related to his disability and the car sale. The Tribunal held that he was too inconsistent on this issue to be reliable and instead preferred the evidence of the car dealership’s witness. Regarding the inconsistency, the Tribunal found the following at paras 45 and 46:

[45] Mr. Verozinis has testified both that he was adversely impacted because the vehicle was purchased by his wife rather than by him and that he did not receive the vehicle he wanted being a hybrid or electric vehicle but instead received a gas‐powered vehicle. However, Mr. Verozinis has testified to his awareness that a vehicle in the category that he desired was not within the financing capability of his wife. In other words, Mr. Verozinis had to know and I find that he did know that the vehicle his wife was purchasing at the time of the transaction with the Respondent was a gas‐powered vehicle. Accordingly, I find that Mr. Verozinis was not adversely impacted by the purchase of a gas‐powered vehicle as opposed to a hybrid or electric‐powered vehicle.

[46] More contentious is Mr. Verozinis’ inconsistency around understanding that the vehicle was purchased by his wife. It is clear on the evidence that Mr. Verozinis understood that his wife was financing the purchase of the vehicle, either because Mr. Verozinis believed that his bankruptcy prevented him from purchasing the vehicle at all or because he understood that if the vehicle was purchased in his name it would be at a higher interest rate than if his wife purchased the vehicle. In either event, Mr. Verozinis clearly understood that the financing of the vehicle was dependent upon his wife’s income rather than his own.

Further, the Respondent was successful in demonstrating that it took all reasonable and practical steps to avoid an adverse impact on the Complainant because their employees offered to use a microphone, spoke loudly and clearly, and sat so he could see their faces at all times.

The Tribunal also held at para 55 that “generally, a person seeking accommodation must give the service provider the facts needed to accommodate, facilitate the implementation of reasonable accommodation proposals, and accept reasonable accommodation.”

This case demonstrates that those alleging discrimination should ensure they are clear and consistent when giving evidence at a hearing. It also demonstrates that people with disabilities who need accommodation must assist service providers in accommodating them before they can allege that the service provider has failed to do so. Further, it demonstrates that service providers should make all reasonable and practical efforts to accommodate those with disabilities.

Kayla Bergsson Talks on Danish Podcast About Human Rights in Times of Crisis

 

COVID-19 Amounts to Disability & Employers Must Accommodate Employees Amidst the Crisis, BC Human Rights Commissioner States

AdobeStock_329127953

On March 23, 2020, BC’s Human Rights Commissioner Kasari Govender released a statement on COVID-19, saying that in her view, COVID-19 amounts to a disability. While she recognized that in the rapidly changing circumstances, there has not been time for courts of the BC Human Rights Tribunal to weigh in on the matter, she was prepared to provide her opinion. She gave the following reasoning:

The seriousness of this illness – and the potential stigma that attaches to it – make it more akin to the legal protections that apply to HIV than to the common cold. Therefore, discrimination on the basis of someone having (or appearing to have) COVID-19, is prohibited under the Code except where the duty bearer can justify such treatment (for example, to prohibit or diminish the transmission of the virus).

Commissioner Govender also asserted that in addition to the BC Human Rights Code protecting people with the virus from being discriminated against, it also protects people from being discriminated against based on the ethnicity, place of origin, race, colour, or ancestry. This means employers, landlords, and service providers “cannot discriminate against someone on the basis of whether a person comes from (or appears to come from) a COVID-19 hotspot such as Italy or China.”

Additionally, she stated, discrimination based on family status is protected. This means that with the closure of daycares and schools, duty bearers must accommodate parents so that they can ensure their children are cared for.

According to Commissioner Govender, employers have a number of duties in the midst of COVID-19. They cannot make discipline or firing decisions based on someone having (or exhibiting symptoms of) COVID-19 (although they can lay employees off if there is not enough work for the as a result of the impacts of COVID-19). They must accommodate employees that may have COVID-19, or are particularly vulerable to COVID-19 (for example if they are elderly or immunocompromised) by providing flexible arrangements, such as working from home.

Commissioner Govender also presented a survey for citizens to complete in order to assist her with carrying out her duties and advocate for people facing discrimination during the pandemic. The survey asks about how your human rights are being impacted during COVID-19 and you are encouraged to fill it out.

Legislation Allows BC Employees Unpaid COVID-19-Related Leave

On Monday, March 23, 2020, the British Columbia Government amended the BC Employment Standards Act with Bill 16 – Employment Standards Amendment Act (No. 2), 2020  to grant BC employees the ability to take a job-protected unpaid COVID-19-related leave.

This leave was mentioned in our previous post regarding human rights, employment law, and COVID-19, however, the legislation and details contained within it were not known until March 23, 2020.

In introducing the new legislation in parliament, the Honourable Michael Farnworth stated the following:

Bill 16 amends the Employment Standards Act to provide unpaid job-protected leave to employees in British Columbia during the COVID-19 crisis. COVID-19 is an unprecedented public health emergency for British Columbians and for people across Canada and around the world.

The most important part of our work is protecting British Columbians. During this crisis, no employee will lose their job or be fired for following an order of the provincial health officer or for needing to care for a child whose school is closed.

According to section 52.12(2) of the legislation, employees are entitled to unpaid leave if, in relation to COVID-19, any of the following situations apply:

  1. the employee has been diagnosed with COVID-19 and is acting in accordance with their doctor or an order of a medical health officer;
  2. the employee is in quarantine or self-isolation in accordance with an order of the provincial health officer (Dr. Bonnie Henry – her Orders are available here), an order made under the Quarantine Act (for example, the most recent emergency order requiring persons entering Canada from elsewhere to self-isolate for 14 days), guidelines of the BC Centre for Disease Control (available here), or guidelines of the Public Health Agency of Canada (available here);
  3. the employer, due to a concern about exposing others, has directed the employee not to work;
  4. the employee is providing care to their child due to the closure of the child’s school, daycare, or similar facility; or
  5. the employee is outside the province and cannot return to BC because of travel or border restrictions.

These circumstances outlined in section 52.12(2) are quite broad, as they allow people to follow not only the provincial health officer’s orders, but her recommendations as well. For example, when the legislation was being debated, MLA Sonia Fursteau asked for confirmation that it protects a cashier with significant respiratory issues from needing to attend work. Someone in this position is protected because the provincial health minister has recommended that they not attend work.

Section 52.12(3) of the legislation allows the leave to carry on for as long as the circumstances in section 52.12(2) apply to the employee.

The Employment Standards Act, as amended, allows the employer to request proof the the above circumstance exists; however, the employee is not required to provide a doctor’s note. What kind of proof is required will thus vary according to the circumstances and is yet to be seen. If an employee needs to take the leave due to their child’s daycare being closed, for example, a letter from the daycare notifying parents of the closure may be sufficient proof.

The Employment Standards Amendment Act also came with transitional provisions that make employees eligible for the leave as of January 27, 2020 (the first day a coronavirus case was reported in BC). This means that if an employee is already off of work because of an eligible situation set out in section 52.12(2), they cannot be terminated. It also means that if an employee was terminated after January 27, 2020 but before March 23, 2020, due to the circumstances outlined in section 52.12(2), the employer must offer the employee re-employment in the same or a comparable position.

Presumably, if an employee is terminated in the above circumstances, for example when they need to stay home and care for a child who has lost childcare, a human rights complaint could still be available as well.

Covid-19 Raises Employment and Human Rights Concerns Across BC, Government Announces Novel Protections

From both the employer and employee perspectives, the coronavirus pandemic raises real concerns for folks’ health and livelihoods. While the world worries about humanity’s future, individuals worry about the futures of their families and businesses. To combat some of these concerns, Premier John Horgan assured British Columbians today that their jobs will be protected and amendments are coming to BC’s Employment Standards Act in the interest of workers.

Given the complex nature of these issues and continual efforts to strike a balance between health, economic, and human rights concerns, there is a potential for an influx of employment and human rights law claims across BC. Employees terminated prior to the new legislation coming into effect, or despite it, may be entitled to severance above the minimum amounts required under the current legislation. And employees who are not accommodated or are terminated due to health issues, family obligations, ethnicity, or place of origin, may have claims under the BC Human Rights Code.

On Wednesday, March, 11, 2020, the World Health Organization (WHO) characterized the coronavirus as a pandemic. It stated that “there are now more than 118,000 cases in 114 countries, and 4,291 people have lost their lives.” British Columbia (BC) has confirmed a total of 186 cases of the coronavirus in the province as of March 17, 2020, with seven people having perished.

Today, BC’s provincial health officer declared a public health emergency. This gave her the power to order that all bars and clubs are to close down, which she did. Numerous businesses have closed voluntarily across BC and Canada. British Columbians fear that a lack of travel restrictions on their neighbours in Washington State, one of the US hotspots for the virus, puts them at risk.

Prime Minister Justin Trudeau is currently self-isolating, due to his wife Sophie having tested positive for the virus. He stated on March 16 and 17, 2020 that as much as possible, folks should stay home. He assures Canadians that the federal government is working to keep businesses and employees afloat during this time of crisis and that while parents are working from home, they can “let their kids run around a bit in the house.” Measures are being put in place to speed up employees’ access to Employment Insurance benefits. And, as stated, Premier John Horgan assured British Columbians today that their jobs will be protected and amendments are coming to BC’s Employment Standards Act.

Of course, however, employers and employees are experiencing barriers as a result of the coronavirus pandemic. Employers are concerned about running debt, or worse, going out of business. As a result, some employers are terminating employees. Others are requiring employees to come to work in-person and due to that, may expose themselves and others to the risk of contracting the virus. There is also potential that employers could expose themselves to negligence lawsuits from those who contract the virus from other employees required to come to work, despite exhibiting symptoms.

Employees face difficult decisions about whether they should go to work in order to provide for themselves, or stay home according to federal and provincial recommendations. They are also dealing with taking care of their children, as many spring break and childcare programs have shut their doors. Today, BC Premier John Horgan announced school closures for the indefinite future, and parents have concerns about child care for the weeks, and possibly months, ahead.

Unfortunately, some employees even have concerns that they have been discriminated against for their ethnicity or place of origin and its assumed connection with the origins of the covid-19 pandemic.

From both the employer and employee perspectives, there is real concern here for folks’ livelihoods and well-being. We are facing a pandemic that has the potential to seriously effect the global population on an unprecedented level and we all have a moral duty to slow the spread of the virus. At the same time, people need to put food on the table and keep roofs over their familes’ heads. Bills continue to accumulate for everyone; rents and mortgages need to be paid.

The WHO, the Canadian federal government, and the provincial and territorial governments across Canada recognize the complex nature of these issues. According to the WHO, “all countries must strike a fine balance between protecting health, minimizing economic and social disruption, and respecting human rights.”

Given the complex nature of these issues and the continual efforts to strike that balance, there is a potential for an influx of employment law and human rights claims across BC.

One common misconception is that employers need a legitimate reason to terminate employees. This is not currently the case, although this may change with the upcoming employment standards legislation in response to covid-19. At present, employers are generally free to terminate employees without cause, so long as they are not breaching employment contracts, union obligations, or human rights laws. They only need to provide adequate notice, or adequate pay in lieu of notice. This will likely change soon with the novel legislation.

Another common misconception is that employees are only entitled to severance amounts required by the BC Employment Standards Act. The Courts have commonly awarded severance amounts greater than the minimum requirements in the legislation. For example, it is possible a court could award someone severance representing 3 months’ pay after they work for their employer for three years, despite the provincial legislation requiring employers to pay a minimum of only 3 weeks’ pay.

The BC Human Rights Code protects British Columbians from being discriminated against in their employment based on a physical or mental disability, their family status, their ethnicity, and their place of origin. This means that if an employee is terminated because they were unable to come to work as a result of being sick from the coronavirus, there is potential for a claim based on discrimination in the area of disability. Whether suffering from the coronavirus constitutes a disability under the Human Rights Code is yet to be determined.

Given that many employees are having to stay home to take care of their children as a result of losing childcare, there is also the potential for discrimination claims based on family status. There are limits on an employer being able to terminate an employee due to their having to meet family childcare obligations.

Lastly, employees terminated due to an assumed connection between their ethnicity or place of origin and the origin of the coronavirus pandemic may also have been wrongly discriminated against under the BC Human Rights Code.

MacIsaac & Company recognizes the complex nature of employment and human rights law concerns in the face of this pandemic. We remain available to help you navigate these issues during this challenging time.

Tribunal Allows Timely Complaint About Rejection of Assistance Dog

The Complainant in Vanderhoek by Favell v. Strata Plan No. KAS742, Lavelle Vanderhoek, reports having depression and hearing loss. When her neighbour passed away and left her their dog, the Respondent Strata began raising issues. Vanderhoek filed a human rights complaint against the Strata for allegedly discriminating against her in services based on her mental and physical disability. The Human Rights Tribunal decided that the complaint was filed on time.

The BC Human Rights Code section 22 (1) requires human rights complaints to be filed within one year of the alleged contravention. According to section 22(2), if the complainant is alleging a continuing contravention, the complaint “must be filed within one year of the last alleged instance of the contravention.”

The Strata raised issues with the dog in mid-2017. According to Vanderhoeck, someone from the Strata said in October, 2017, that she would be sued if she did not get rid of the dog. Vanderhoek argued her case for keeping the dog before the Strata in a hearing during December, 2017. Then, in January, 2018, she was told she could keep the dog if she produced a “Guide Dog and Service Dog Certification” by no later than April 2, 2018. In September, 2018, the Respondents sent Vanderhoek a letter stating that the Strata voted against a bylaw change that would allow owners to have pets. Vanderhoek filed her complaint on March 18, 2019.

Tribunal Member Steven Adamson decided that the complaint was filed on time. This was based on the September, 2018 letter from the Strata constituting a new decision. The Strata also acknowledged its previous deadline of April 2, 2018 in the letter.

The Tribunal considered whether the events in 2017 to 2018 were part of a “continuing contravention” and ruled that they were.