Human Rights, New Powers of the Commission and Few Notes About Accommodation

Members may be aware of the Human Rights Tribunal, established under the Human Rights Code RSBC 1996, c 210, that among other provisions, establishes the prohibited grounds under which Employers are prohibited to discriminate in Sec 13 of the Code, which include inalienable characteristics of a human being such as race, sex, sexual orientation, ethnicity, and others, or those which are a matter of personal conviction in a free and democratic society such as religion and political views.

Discrimination in employment

13(1)A person must not

(a)refuse to employ or refuse to continue to employ a person, or

(b)discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

(2)An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1).

(3)Subsection (1) does not apply

(a)as it relates to age, to a bona fide scheme based on seniority, or

(b)as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employer.

(4)Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

 

Unionized members do not need to file a claim of discrimination through the Tribunal, because a grievance procedure is able to provide for the same or similar remedy as would the Tribunal process, and a labour arbitrator has the same powers to that effect. Where a member has been terminated from employment, and advances an argument that they were unjustly terminated due to failure to consider an accommodation, the Human Rights Tribunal additionally will only award damages, whereas the labour arbitrator may reinstate the employee to employment, which is another reason why in a unionized setting we would proceed via grievance, rather than a complaint to the Tribunal.

However, members may not be aware of the HR Commission, a body established to proactively investigate and make recommendations pertaining to the advancement of human rights more broadly, rather than the Tribunal which hears specific complaints brought to it by application.

On Aug 4, 2020, with Black Lives Matter demonstrations happening in the United States, Royal assent was given to the amendments enacted by the government of British Columbia to the Code that give the Commission greater powers to conduct its work which include:

  • The Legislative Assembly or any of its committees can refer a matter to the Commissioner at any time for an inquiry and a report. The Human Rights Commissioner is tasked with promoting and protecting human rights. If the Commissioner chooses to accept the referral, the Commissioner is required to inquire into the matter and create a written report for the Legislative Assembly. If the Commissioner chooses to not accept the referral, written reasons must be provided to the Legislative Assembly.
  • If the Commissioner determines that an inquiry into a matter would serve to promote or protect human rights, the Commissioner is given the power to inquire into that matter. The inquiry may be done publicly.
  • While conducting an inquiry, the Commissioner is given broad powers to gather information, including ordering a person to attend an interview or produce records to the Commissioner. This order may be filed with the Supreme Court and has the same force and effect as if it were a judgment of the Supreme Court.
  • Once an inquiry has concluded, the Commissioner may make a written report outlining any recommendations the Commissioner determines are appropriate. If the recommendation relates to a person, the Commissioner may require that person to notify the commissioner of action taken, or action that’s intended to be taken to address the recommendation. If the person does not address the recommendation within an adequate period of time, the Commissioner may write a report about that individual’s failure. This report may be published and provided to the Speaker of the Legislative Assembly.
  • It is an offence to willfully make a false statement to the Commissioner, obstruct, mislead, or attempt to mislead the Commissioner in the performance of duties under the Code. A person who commits this offense may face a monetary fine.

It is important to remember that discrimination itself is not prohibited where based in bona fide requirements.  An employer must not generally discriminate on the basis of disability, for example, but where the requirements of the job require a particular ability, such as those of physical fitness for police officers, for example, the employer may discriminate against someone with a disability or inability to attain a particular fitness standard.

Continuing with the example of a police officer, where the police officer is initially employed, and becomes disabled later, the employer is not required to keep the police officer employed in his previous capacity due to his new disability, but is required to accommodate him in another capacity, wherever and as much as possible, up to a point of undue hardship.  In this example, then, the disabled police officer may no longer be capable of working in a frontline capacity, but could do many other ancilliary jobs, such as dispatch, court document delivery, clerical support, teaching cadets, and so on. The employee, the employer and the union are all part of a nexus of interested parties, all of whom are required to participate and actively work toward an acceptable accommodation of a disabled employee.

Sometimes an employee may request an accommodation to prevent further complications of an illness or injury, such as those living with immunocompromised health.  In those circumstances, the accommodation process is much more difficult, since the number of conditions that could impact on a person’s health could effectively render the employee unemployable, and have the employer reach the point of undue hardship quickly.  Closer to our circumstances, an employee may make a claim that they are unable to attend to work in September due to the Coronavirus pandemic, since their age and health status make them high at risk of contracting the virus.  What should be the process and the outcome of such a request, legally speaking?

Let’s consider this issue carefully, giving some analysis of each of the steps of the process and some theory behind it.

Request for accommodation:

In this theoretical example, the employee is requesting to be accommodated.  But, it is possible that the employee has a very specific view of what an accommodation is, and possibly an incorrect view.  The Employer and the Employee are in a contract of employment.  In a unionized context, the Union is actually in a contract with the Employer on behalf of a collective of employees.  This contract requires the employee to attend to work as agreed and perform the functions of their employment; the Employer is required to pay them for such duties, provide managerial direction and supervision and communicate with the employee in the event of required changes, performance concerns and all those things which form the customary duty of management.

A request for an accommodation is asking the Employer to examine the workplace and see if a better fit could be made giving the employee special preferrential treatment due to their health concerns.  The accommodation is not a process whereby the employee is excused from working, to be able to remain at home while keeping employment status – that process would require an application for a leave on the basis of medical concerns.  Where an accommodation has the outcome of determining that an employee should remain at home, that accommodation process has failed as the employee’s circumstances have been judged to go beyond undue hardship to the Employer, and word of caution, members do not want to reach this point as it effectively means they could be terminated on a non-culpable basis as no meaningful accommodation with the Employer is possible and their disability or illness is such that they can no longer be employed for the Employer.

 

Medical Documentation/Certification

In this example, we are considering an employee who makes a request for accommodation on the basis that they are at higher risk of contracting Coronavirus. What sort of medical information would an employee need to provide?

In the case of our disabled police officer above who was injured on the job and became a parapalegic, the limitations of his abilities are very clear: he must use a wheelchair, he cannot run, walk, jump over fences, etc.  All this information would be provided by his physician to his employer to aid in the process of adequately accommodating him.

In the instance of an employee making a claim that they are at a higher risk of contracting a virus, we are dealing with a much more subjective claim – as the employee has not actually contracted any illness, may never contract the virus, and if contracting the virus, may not actually even get sick.  As such, this claim is speculative, and is asking the employer to give preferential treatment to some employees over others, which is a request not for equity or equality, but for privilege, and therefore has to be appropriately justified by medical information.  A medical doctor will be required, likely, to certify that in their professional opinion, the patient is at elevated risk to that of the average person, and provide the grounds for such an assessment.  In effect, the doctor is making a guess, but it is an informed scientific guess rather than anxiety about contracting the virus any person might have.

By analogy, a person may make a claim that they are at higher risk of falling down due to their anxiety about falling down, and request of the employer to work from home, since the possibility of an incident of falling down at their home lowers their anxiety about falling down, which has the effect of actually having them not fall down or having them fall down less.  In this case, the Employer would be looking at a situation that has not happened, and considering significantly altering their operation to prevent the employee from experiencing something that has not happened, may not ever happen, all on the belief, that it may possibly happen.  To put simply, the employer would not be required to accommodate this request, as the employee is not suffering from an illness or injury – but requesting to be spared the possibility of experiencing an injury.

For school district employees, the facts are actually even more straight-forward since members work in front-line jobs that are not conducive to working from home with possibly the exception of clerical staff.  Since students will be in the schools, and not at home as in March, working from home is not likely to be possible.

The medical information, then, would have to certify not that the employee is at elevated risk of contracting the virus alone, but is at elevated risk of not recovering from an infection as easily as an average person or having a much more complicated and difficult recovery.

 

Accommodation Outcome

What is the most likely outcome, then, in our theoretical example of an employee requesting an accommodation on the basis of heightened risk to experience negative impacts of the virus?  The most likely outcome of a bona fide request is that the employee would be given alternate duties that limited their contact with other people, such as custodial duties after the instruction day is over or in more isolated physical environs where, again, the most likely tasks will be cleaning facilities and other custodial work. Remember, the accommodation is not a process to excuse the employee from working, but to attempt and find other duties at work that meet the limitations of their illness or injury.

Under the law, the employer is not required to:

  • Create new jobs or bundle duties just to accommodate an employee
  • Pay the same rate of pay to the accommodated employee unless performing the duties of their previous job, and a lower rate of pay based in the actual duties performed is permissible
  • Promote the employee even where qualified, that is, unless the employee applies for a vacancy as per normal course and obtains a job with a higher rate of pay; the accommodation process itself cannot be used to argue the employee should work in a capacity that results in higher pay, thereby bypassing the promotion or posting language of the collective agreement and adversly impacting other employees

 

Conclusions

Members who do not wish to expose themselves to the possibility of contracting the virus, and are not convinced that it is safe to work, but who cannot meet the requirements of a bona fide accommodation, or who do not want to perform custodial duties as the likely accommodation, or whose primary purpose of the accommodation request is the hope they would be permitted to remain at home, are best to request a medical leave of absence and use their sick days for income, or simply take a leave of absence without pay if they have other means of supporting themselves.  They will not likely qualify for any of the government supports, as work is available to them, but this may be the cost of the peace of mind they are seeking in choosing not to take the risk of potential contraction of the virus.

Members who do have a medical condition that would make recovery from the virus more difficult, or would make them more succeptible to contracting the virus, can request an accommodation and should contact the Union if they run into any difficulties and need our assistance.  We remain available to you and will advocate for you including filing a grievance for failure to accommodate.

 

Should you have any more questions, feel free to post a comment below, and I will respond as soon as I can.

 

In solidarity,

Dan Todd

CUPE National Representative

Return to School & COVID-19 FAQ: Accommodation and more

Duty to Accommodate

Members with a medical condition may be entitled to an accommodation. Depending on the circumstances, the School District may be required to consider alternative working arrangements. Those arrangements will be tailored to the individual circumstances, and might include modified work schedules, changes to the working environment, the provision of additional PPE, or working from home arrangements. The onus is on the member and the union to prove that the member has a medical condition that requires accommodation. That means that the member will need to get at least a written doctor’s note supporting their request. If members need a medical accommodation, they should make an appointment with their physician immediately to discuss their circumstances. Members should provide their doctor with as much information as possible about the specific job, and the plan for returning to work so that the doctor can give an informed opinion about whether the workplace is safe for them, and what accommodations might be needed. Do not leave these issues until September! Members in this situation should schedule an appointment with their doctor right away. Contact your Local for assistance if needed.

Unless they are granted a leave of absence such as a medical leave, school district employees must attend work or risk the possibility of discipline. It is not up to individual members to decide whether or not they are comfortable returning to work. Anyone who has specific circumstances that pose problems for their return to work should raise those issues with their Local and the district well in advance of September.

Existing sick leave benefits and other terms in the collective agreements apply. This means that members should have access to sick leave if they are unable to work due to a health issue. It also means that they may be required to provide medical documentation to support their request for sick leave. However, we recognize that for many members, existing sick pay may not be enough. We have flagged this with government and will continue to push for improvements to sick leave benefits so that members can be sure that they will not be without pay if they cannot work because of COVID-19.

In some cases, members may be entitled to an accommodation. If a member has a documented medical issue, the employer is required to consider alterations to the workplace including adjusted schedules, additional PPE, working from home, or other modifications to the workplace so that the member can continue to work safely. These cases are all unique and will depend on the circumstances. That said, members will be required to provide medical documentation of their condition and restrictions.

In some cases, the employer may be required to accommodate you based on “family status” as described in the Human Rights Code. These cases are rare, and typically only arise where the employee is legally required to care for someone, such as a child. Family status accommodation typically does not apply where the vulnerable person is a parent or other adult family member. Whatever the case, you will need to get a recommendation from a doctor about what is safe and appropriate for you and your family member. If the doctor recommends that you not attend the workplace, you may need a leave of absence or to seek an accommodation. If this circumstance applies to you, you should speak to your union representative immediately to get assistance. You should also schedule an appointment with a doctor to discuss your circumstances and get advice.

Learning Groups (Cohorts)

A learning group (cohort) is an extra layer of protection that provides an opportunity for children to interact in school. This recommendation of the PHO increases the ability to better track if there is a COVID outbreak. Learning groups are limited to a maximum 60 students and staff in elementary and middle schools and 120 students and staff in high schools.
Support staff and teachers are included in the learning group numbers. They can leave the cohort as long as they are practising physical distancing.

No. Your household bubble is made up of the people closest to you that you can hug, and you don’t have to practice physical distancing with them. The learning group does not negate physical distancing. We know we can’t always maintain physical distancing at all times in schools and learning groups make sure that risk periods are small and only with a limited number of students.

Learning groups are recommended by the PHO as a way to reduce the number of interactions between students and staff, and to limit potential exposure.

All districts have various ways of dealing with students on buses: some will keep them in cohorts; some will put them in family groupings; and some will keep an empty seat between them. Districts will have to follow all protocols and guidelines of the PHO. We understand that this will be outlined in each district’s health and safety plan as part of the restart plan. CUPE staff will be gathering information on health and safety plans and issues arising from each local so that we can track progress and concerns as they come up. This will help us coordinate efforts across B.C.

We understand that staff who transition between learning groups or work with students from different learning groups will not be included as part of any single learning group. This means that they will take appropriate precautions, including physical distancing and appropriate PPE, when working.

A learning group is a group of students and staff who remain together throughout the school quarter, semester or year and who primarily interact with each other.

Within a learning group, K-12 students and staff do not need to maintain physical distancing. All staff must still make efforts to minimize physical contact within learning groups.

Outside of their own learning group, middle and secondary students and all K-12 staff need to practice physical distancing of two metres, and other safety protocols like frequent hand washing and covering coughs. Most importantly, anyone who feels unwell must stay home.

Extracurricular activities will likely involve students interacting outside of their learning groups and appropriate physical distancing is required in those circumstances.

As stated in the BCCDC guidelines, outside of a learning group, all K-12 staff as well as middle and secondary students, need to practice physical distancing of two metres, and implement other safety protocols like frequent hand hygiene as identified by the PHO and BC Centre of Disease Control. Staff from outside of the learning group must practice physical distancing at all times in all interactions at work.

OHS Cmmts, WCB Coverage

All districts must adhere to the same safety guidelines as set out by the Provincial Health Officer, Dr. Bonnie Henry. Implementation may vary slightly to district to district as they meet their individual needs.

Please bring your safety concerns to your site health and safety committee.

The PHO, in collaboration with health authorities, will oversee all outbreaks as they have been doing. Their response will vary depending on how the person contracted COVID-19. The public health team will do contact tracing and the PHO will give direction on what response is needed. This could range from isolation to quarantine depending on the situation. If the rate of community infection rises, the PHO will revise recommendations as needed.

Please bring your safety concerns to your site health and safety committee.

Appropriate PPE must be provided to those who would normally require it, notwithstanding the COVID-19 pandemic. WorkSafeBC guidelines on working under infectious conditions state that employers must develop and implement an exposure control plan. The guidelines also say that workers should know how to select appropriate PPE, how to put it on, and how to take it off. WorkSafeBC includes the following PPE to be used under infectious conditions: gloves, respirators, face shields, gowns, foot covers, and eye protection.

During the announcement about the K-12 Restart, Education Minister Rob Fleming specifically mentioned face shields as well as reusable masks as being available for teachers and support staff working in schools. Districts have been directed by government to provide reusable face masks to staff when requested.

All districts are required to submit their safety plan to the Ministry by August 21. Districts are also required to consult with unions prior to developing their plan. The K-12 Presidents Council has recommended that locals meet with their district now to give input on the safety plan. Many locals have started these meetings and will continue to do so as they work towards the August 21 deadline.

Please bring your safety concerns to your site health and safety committee.

Normally, when a worker files a Work­Safe claim due to an occupational disease, the worker is required to prove that the disease was caused by the workplace. This places an onerous burden on the worker to prove causa­tion, which is often highly controver­sial. However, WorkSafe maintains a list of diseases and industries in which the disease is presumed to be caused by the workplace if the workers work in one of the associated industries. Usually this occurs where scientific evidence establishes that certain occupational diseases occur more commonly in that industry. For example, the list includes a presumption for mesothelioma in industries where there is exposure to airborne asbestos dust. In those cases, the worker does not need to prove that their illness was caused by the workplace in order to access compensation.

WorkSafe has added a presumption that covers any “communicable viral pathogen” that is subject to an order of the Provincial Health Officer, or the subject of a state of emergency. The applicable industries include those where the risk of exposure to the disease is significantly greater than that of the public at large during the times and in the places covered by the Provincial Health Officer’s notice, or the state of emergency. The change means that anyone who contracts one of these diseases—and who works in an industry that is at greater risk of exposure to the disease—does not need to prove that they contracted the disease at the workplace.

The change is not restricted to COVID-19 and would also apply to future epidemics that are the subject of orders from the Provincial Health Officer or subject to a state of emergency.

Normally, changes to the list of pre­sumptions requires 90 days before they come into effect. Bill 23 overrides that time frame and allows the change to come into effect immediately.

In most cases, yes. Workers who contract COVID-19 will be able to claim Workers Compensation as long as they work in an industry that is at greater risk of exposure than the public at large. WorkSafe has not provided any guidance on what types of workplaces will be covered by this description, however, so there remains some uncertainty. In all likelihood, any workplace that includes exposure to the public or larger numbers of people will be covered.

Districts must follow the cleaning guidelines of the BC Centre for Disease Control and the Provincial Health Officer/BC Ministry of Health. This document provides guidance for K-12 schools settings, and it is updated regularly by the government as changes are made. For current and updated information on cleaning and disinfecting for public settings check out this document.

WorkSafeBC has added K-12 Guide­lines to their website. Find these additional resources here.

Parents and others who are permitted to come into schools will be required to follow the safety protocols outlined in the district’s safety plan. These protocols must follow PHO guidelines for safety at all times. CUPE and the K-12 Presidents Council have been advocating that all members of the public, including parents and volun­teers, check in with the school office or call prior to arriving at the school, and that schools limit the number of outside visitors whenever possible.

Please bring your safety concerns to your site health and safety committee.

Other

Districts are required to consult with unions in the district as part of the planning for stage two. Locals are encouraged to contact their districts to start these discussions now.

The Ministry of Education has allocated $45.6 million to schools to be used for various needs including hiring more staff, purchasing masks, and $3 million to support remote learning (including the purchase of devices and software).

We have consistently been told that B.C. is in a good place with public health able to manage transmission. We have also been told by PHO Dr. Bonnie Henry that children transmit the virus at a low level. We have been following the direction of the PHO who stressed that education is essential, and children need to be in school or may face lifelong implications. The Stage 2 protocols have been designed to allow children to return to school safely – safety being paramount.

CUPE advocated for funding to hire additional staff and the government has allocated $23 million to immediately hire additional qualified custodians to fulfill the cleaning requirements in schools. BCCDC’s requirements include general cleaning and disinfecting of the premises at least once every 24-hours (includes items like an individual desk and locker that only a single student uses); cleaning and disinfecting frequently touched surfaces at least twice every 24 hours (e.g. door knobs, light switches, toilet handles, tables, desks and chairs used by multiple students, keyboards and toys); and cleaning every surface that is visibly dirty.

Yes. CUPE and the BCTF both sit on the steering committee and we support each other. We are all in this together.

Other important documents

URGENT: Corona Virus Guide from CUPE National BC Regional Office

Sisters and Brothers:

Please download this guide for the Corona Virus situation.  If you have any other questions, we are here to help.  Do not hesitate to contact us.  You can find contact numbers on the Contact Us page or our About Us-Executive Board page.

Please share with your colleagues and we ask that area communicators in our schools print these and post them on the Union Notice Boards and in all common areas.

 

Sincerely,

Stacey Robinson, 1st VP

DOWNLOAD

Fact Sheet for Filing WorkSafeBC (“WCB”) claims for the 2019-nCoV Coronavirus (“COVID-19”)

The following bulletin is being provided by Brother Tom McKenna, National Representative Specialist in the area of OHS & WCB.


I. PURPOSE OF FACT SHEET:

This Fact Sheet provides an overview of how to file a WCB claim for exposure to COVID-19. Please see the “BC Region Guide Filing WorkSafeBC Claims for the Coronavirus” (now called COVID-19) for additional detailed information at https://www.cupe.bc.ca/occupational_health_and_safety_committee


II. BACKGROUND:

COVID-19 is a virus in the same family as SARS (Severe Acute Respiratory Syndrome), although is has a much lower fatality rate than SARS. As per the BC Centre for Disease Control (February 11, 2020) the risk of infection from this virus remains low at this time in BC, subject to updates.


III. FILING WCB CLAIMS – KEY LEGISLATION AND POLICIES (NOT AN EXHAUSTIVE LIST):

When filing a WCB claim for exposure to COVID-19 some important points to consider include:

  • WCB claims may be adjudicated under Section 5 of the Workers Compensation Act but it is more likely that they will be adjudicated under Section 6 Occupational Disease. There are many different WCB Policies that interpret the Workers Compensation Act and may apply to a claim. Policies 26.00 and 28.00 are most commonly applied by the WCB. Each claim will vary.
  • WCB claims may be for time loss (“wage loss”), healthcare benefits or both.
  • Workers should file the Form 6 – Application for Compensation and Report of Injury or Occupational Disease. The Employer should file the Form 7 – Employer’s Report of Injury or Occupational Disease. See https://www.worksafebc.com/en/resources/claims/forms/application-for-compensation-and-report-of-injury-or-occupational-disease-form-6?lang=en
  • The appeal tribunals and WCB have said that the nature of the employment usually must create a risk of contracting the disease to which the public at large is not normally exposed, as one example. Each claim will vary according to the facts.

IV. INITIAL STEPS FOR FILING A WORKERS’ COMPENSATION CLAIM:
  • Seek medical attention immediately.
  • Advise the Employer immediately, including incident reports as required.
  • Advise the WCB immediately e.g. by filing the WCB Form 6.
  • The WCB Form 6A is an Employer form that does not initiate a claim.
  • Ask the Employer to file the WCB Form 7 and obtain a copy of the Form 7.
  • Include all relevant information such as the occupation (which may have a higher than average exposure to the COVID-19), duration of exposure, places of exposure, presence of persons with symptoms and / or diagnosed COVID-10, evidence of work causation, etc.
  • Ensure the information in the Form 6 and Form 8 / 11 (Physician’s reporting forms to the WCB) is consistent.
  • Advise the health and safety committee as applicable to address health and safety issues.
  • Obtain clinical records / chart notes from the treating practitioners. Be careful of privacy issues.
  • Have all relevant information available for calls from the WCB e.g. Teleclaim, for consistency.
  • Obtain a copy of the WCB claim file. Ensure the contents are accurate and contain all relevant documents and evidence. Check wage loss, income, and payroll information very carefully.
  • Keep detailed logs of all calls, correspondence, meetings and treatment.

V. REASONS WHY A CLAIM MAY BE DENIED (SAMPLE REASONS ONLY):
  • Lack of presence of persons with diagnosed COVID-19 in the workplace.
  • Limited exposure duration.
  • Prevalence of COVID-19 in the workplace as opposed to the general public.
  • Lack of a confirmed diagnosis.
  • Volunteering as opposed to work related duties.
  • Symptoms and / or diagnosis occurring during periods of time off such as vacation, non-work related travel, etc.
  • Contradictory information in the WCB Form 6, Form 7 and Form 8 / 11.
  • Report any related discipline, retaliation, or claims suppression to both the Local and the WCB.

VI. RESOURCES AND INFORMATION:

See the BC Region Guide Filing WorkSafeBC Claims for the Coronavirus for additional detailed information at CUPE BC OHS Committee and WorkSafeBC at Worksafe BC