Members may be aware of the Human Rights Tribunal, established pursuant the Human Rights Code RSBC 1996, c 210, to hear complaints brought to it by action that alleges contraventions of the enforceable clauses of the Code.  The Code, among other provisions, establishes the prohibited grounds protected from discrimination “in employment” in sec. 13 of the Code, which include grounds such as might be considered to be inalienable characteristics of a human being like 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.

Employees represented by a trade union do not normally seek remedy for an allegation of prohibited discrimination via the avenue of a complaint to the Human Rights Tribunal, though that option is still available to them. Rather, unions will normally proceed with the claim on behalf of a member through their customary dispute resolution mechanism of grievance arbitration.

A grievance procedure is able to provide for the same or similar remedy as would the Tribunal process, and a labour arbitrator has the necessary authority and power to award human rights damages and to interpret human rights law as applicable to the matter before him or her. However, in British Columbia, unlike in Alberta, the BC HRT generally will accept a subsequent complaint to re-try an issue already decided by an arbitrator on the same facts until it reviews the decision for its own assessment of whether it believes the arbitrator applied the same principles it would, and will not dismiss the matter outright on the basis that another process of competent legal authority had already decided in the matter, as it would in Alberta.

Where a unionized worker has been terminated from employment and successfully advances a human rights complaint before the HRT, the Tribunal will only award damages, whereas a labour arbitrator has the authority to, and could, reinstate the employee to employment.

This is another reason why in a unionized environment we would proceed with a claim 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