Accommodations in Unprecedented Times: Accommodating Employees with Higher Levels of Vulnerability to COVID-19
August 17, 2020
August 17, 2020
With B.C. in Phase 3 of the Restart Plan, many employees who were previously working remotely or laid off are returning to the workplace. One issue employers are facing is how to address accommodation requests from older employees and/or those with underlying health issues who are more vulnerable to COVID-19 than the general population. This update sets out an employer’s obligations to vulnerable employees and what to consider when returning them to workplace.
Which employees are considered vulnerable to COVID-19?
The BC Centre for Disease Control has identified “priority populations” as people who have an increased chance of developing severe illness or complications from COVID-19, including older people and those with chronic health conditions (such as heart disease, lung disease and diabetes) or compromised immune systems.
Does the duty to accommodate apply?
In the normal course, the duty to accommodate is raised when an employee has a disability that impacts their ability to carry out their regular job duties. The employer will request medical information concerning the employee’s limitations and restrictions in the workplace. The employer will determine what accommodations it can implement to address the employee’s limitations and restrictions within the employer’s operations.
Employees who are more vulnerable to COVID-19 present a different scenario: their underlying medical conditions and/or age are not, in themselves, disabling. However, while the typical population risks a limited period of illness should they contract COVD-19, those within the more vulnerable group are at risk of permanent health effects or even death.
There are no cases yet concerning the accommodation of those particularly vulnerable to COVID-19. However, the B.C. Human Rights Commissioner has advised that employers must accommodate employees who are considered particularly vulnerable to the virus. In addition, guidance can be found in British Columbia Public School Employers’ Assn. v. B.C.T.F., 2006 CarswellBC 1771 (B.C. Arb.), where an arbitrator addressed whether accommodations were required for pregnant teachers who had an increased risk of contracting the parvovirus, which is similar to COVID-19 in that it (1) is spread through droplets in the same way as a cold or the flu; (2) is generally present in the community; and (3) is contagious before the appearance of symptoms. The adjudicator found the employer had a duty to accommodate the at-risk pregnant employees to the point of undue hardship.
Therefore, employees with particular vulnerability to COVID-19 will likely be entitled to human rights-based accommodation to preserve their rights to equally access work and the workplace (including through remote work arrangements). Accommodations will necessarily focus on measures that will minimize or even eliminate the risk of exposure to COVID-19 for employees with particularly vulnerability, considered on a case-by-case basis.
Considerations for Employers
1. All employers in BC must maintain a safe workplace, which currently includes, by Order of the Provincial Health Officer, implementing a Workplace COVID-19 Safety Plan that outlines the policies, guidelines and procedures in place to reduce the risk of COVID-19 transmission.An accommodation analysis for vulnerable employees should take account of the safety measures in place to generally protect employees from COVID-19 transmission.
2. Employers should also consider the risk of exposure in the context of the employee’s job duties. For example, do they work in an isolated office with a door, or are they expected to be in contact with the public? Protective measures are required for all workplaces, however additional accommodations for vulnerable employees may be necessary (providing PPE, moving to an isolated office, altering work hours or duties etc.).
3. Employers can request medical information from COVID-19 vulnerable employees for the purpose of accommodating their return to the workplace as would occur in the context of a typical accommodation request. Under the BC Employment Standards Act, employers can only ask for “reasonably sufficient proof” that an employee requires a COVID-19 related leave under the ESA, but cannot ask for a medical note. However, if the employee is seeking accommodations, and not a COVID-19 related leave under the ESA, there is no bar to employers requesting further medical information.
4. As in the normal course, while an employee’s physician may set out the limitations and restrictions for the employee, it is the employer that determines how to best accommodate the employee within the workplace.
Employers will be required to accommodate employees whose age or underlying medical conditions make them more vulnerable to COVID-19 than the general population. When faced with an accommodation request, employers should assess the situation on a case-by-case basis in light of the medical information provided by the employee’s physician, the job duties of the employee, risk of exposure and the ability to provide flexible work arrangements.
For questions on any information contained in today’s bulletin, please feel free to reach out to a member of our firm.
All our previous COVID-19 information bulletins can be found on Roper Greyell’s COVID-19 resource page.