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COVID-19: Duty to accommodate workers with immunocompromised family

Tuesday, August 11, 2020 @ 2:16 PM | By Oksana Romanov

Oksana Romanov %>
Oksana Romanov
Both employers and employees have been affected by the pandemic on an unprecedented scale. Federal, provincial and territorial governments have placed demands and restrictions on industries and individuals alike. In Ontario, for example, the government released the list of essential workplaces on March 23, 2020, which was revised at a later date. This decision classified our workforce into four categories: (1) essential workers remaining at work, (2) non-essential workers who had to temporarily leave their at-risk workplaces and (3) precariously employed or gig workers — soon or instantly becoming unemployed, and (4) the already unemployed, receiving employment insurance benefits and looking for work.

Front-line health-care workers and personal support workers belong to the first category of essential workers. They are at a higher risk of contracting COVID-19 as well as exposing their family members to the virus. Other workers and employees, who are gradually returning to their places or work — based on the regional approach in stages — may come in contact with the symptomatic and asymptomatic individuals affected by the novel corona virus.

In addition to their work-related obligations, essential workers might have additional parental and caregiver responsibilities as home their family status. These responsibilities might include taking care of their children and elderly parents, who in specific cases may fall into the category of vulnerable populations, including the immunocompromised.

Gone are the early days of the shutdown. By now, most of Ontario has entered stage 3. More workers are exhausting their federal emergency worker and student benefits, returning to their previous workplace or seeking new meaningful employment. As a result of returning to work, people are facing a different kind of the work-and-life balance dilemma now.

How does one continue working (or not) and caring for their family members who are at higher risk of COVID-19 and related complications?

Vulnerable populations

Some people are more at risk of getting an infection, including COVID-19, and developing disease-associated complications, than others. Several factors play into an elevated risk scenario, including social and economic circumstances of those vulnerable Canadians — especially the immunocompromised.

The government of Canada defines who falls into the category of vulnerable populations. That is, anyone who is “an older adult at risk due to underlying medical conditions (e.g. heart disease, hypertension, diabetes, chronic respiratory diseases, cancer), at risk due to a compromised immune system from a medical condition or treatment (e.g. chemotherapy).”

The federal list includes anyone who has “difficulty reading, speaking, understanding or communicating; difficulty accessing medical care or health advice; difficulty doing preventive activities, like frequent hand washing and covering coughs and sneezes; ongoing specialized medical care or needs specific medical supplies; ongoing supervision needs or support for maintaining independence; difficulty accessing transportation; economic barriers; unstable employment or inflexible working condition; social or geographic isolation, like in remote and isolated communities, insecure, inadequate, or nonexistent housing conditions.”

According to legal information provided by the Community Legal Education Ontario’s Steps to Justice project, “[t]his can include people who have cancer, diabetes, HIV, or spleen or liver issues, or who take medication that affects their immune system.”

Both the Ministry of Health and Public Health Ontario advise immunocompromised Canadians to stay at home. In addition to varied socioeconomic conditions of those vulnerable Canadians, these health authorities indicate that persons over the age of 60 must stay at home to remain safe.

As for the immunocompromised pediatric population, The Hospital of Sick Children in Toronto provides the following examples of children who (1) had a solid organ transplant (i.e. heart, kidney, lung, liver, intestinal), (2) had a bone marrow transplant, (3) cancer, (4) congenital or primary immunodeficiency, (5) HIV/AIDS, (6) rheumatological disease, (7) gastrointestinal disease, and (8) severe burns. Having this and other conditions may entail “taking selective immunomodulators (i.e. anti-TNF agents, azathioprine, MMF and all immunosuppressive agents), taking long-term steroid therapy; and, [being] in a severely malnourished state.”

Based on the government and medical information provided above, employers, lawyers and HR consultants could form a clear picture of what constitutes cases of a weakened immune system and associated underlying medical conditions.

Duty to accommodate

Let’s look at the regulatory framework and relevant legal tools in Ontario.

Under the Ontario Human Rights Code, “family status” constitutes one of the codified grounds of discrimination. So, workers who are parents and caregivers of immunocompromised individuals are entitled to seeking accommodations to change their working conditions and/or adjust their hours of work. These work-related accommodations are decided on a case-by-case basis. Employers have a duty to accommodate those employees under the Code. Hence lack of compliance is actionable; i.e. an employee can file a human rights claim.

Finally in the pre-COVID-19 times, employers could demonstrate undue hardship to justify not providing accommodations to their employees. Although it is still possible for the employer to show that either costs, outside sources of funding or health and safety reasons could have legitimately limited their ability to fulfil their statutory obligations, undue hardship appears to be increasingly difficult to demonstrate with federal and provincial supports and requirements in place.  

In Ontario, the Occupational Health and Safety Act requires employers to keep both workers safe and healthy and workplaces safe. In the context of the pandemic, applying infection prevention and control practices and procedures — developing and implementing policies, cleaning, sanitizing, providing personal protective equipment and maintaining physical distancing — are a must. 

What if receiving workplace accommodations is not enough to keep everyone safe and healthy at home?

If all paid leave options are exhausted, an employee can request a job-protected leave without pay under the amended Employment Standards Amendment Act (Infectious Disease Emergencies), 2020. Among other situations arising from COVID-19, Bill 186 covers the “need to be away from work to care for children because of school or day care closures or to care for other relatives.”

Finally, a tailored legal advice is needed in each particular situation to determine the best outcomes for everyone involved: the employer and the employee caring for their immunocompromised family members.

Oksana Romanov is an aspiring lawyer, who is passionate about fostering inclusive communities, effecting social change and advocating for human rights of persons with disabilities in order to remove attitudinal and environmental barriers to their full participation is society. In September, she is starting the first year of law school at Ryerson University. To learn more about the author, you can visit her LinkedIn profile.

Photo credit / ilyaliren ISTOCKPHOTO.COM

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