As COVID-19 continues to impact workplaces across the province, administrative bodies in Alberta are providing more information to the public regarding COVID-19 in the context of human rights and workers’ compensation.
Alberta Human Rights Commission (AHRC)
On March 16, 2020, the AHRC updated an information bulletin cautioning employers about potential discrimination against employees related to COVID-19. Negative treatment associated with COVID-19 may constitute discrimination against employees on protected grounds of disability, place of origin, or race under the Alberta Human Rights Act. Some workplace restrictions based on recent travel may be reasonable and justifiable, and therefore not prohibited. However, workforce decisions where a prohibited ground is used as a factor unjustifiably will constitute discrimination.
Adverse treatment of employees who are infected by COVID-19, or are perceived to be, is likely discriminatory and prohibited if it is not related to legitimate health and safety concerns. Employers still have a duty to accommodate employees to the point of undue hardship, even in the context of this pandemic.
There is no universal definition or threshold for “undue hardship.” The precise point of undue hardship varies according to the particular circumstances of the employer, employee and workplace. However, the following examples of accommodation are likely new realities for employers, at least in the short term:
- Employers should not send individual employees home or ask them not to work because of COVID-19 concerns unless the concerns are reasonable and consistent with the most current advice from public health officials.
- Workplace absenteeism policies must not negatively affect employees who are legitimately unable to work because of COVID-19 self-isolation and/or quarantine. This is not a legitimate basis for discipline or termination in many instances.
- Employers should consider special arrangements (such as approved time off, work-from-home or alternative schedules) for those with childcare responsibilities due to school closures and/or loved ones infected with COVID-19. As there can be pay implications for the employee based on schedule changes, (i.e. fewer hours worked = less total pay) that issue needs to be discussed with the employee openly and clearly, and the agreement put in writing. Allowing an employee to take vacation or other paid leave they may be entitled to can assist both the employer and employee during a transition period while new childcare arrangements are made or until school classes start again. If an employer does not carefully consider special arrangements, there is a risk of discrimination on the protected ground of family status (other than in cases of undue hardship). If an employer does agree to a new arrangement, it should also be made clear to the employee that it is temporary and based on the current situation.
- Where able to do so without undue hardship, employers should be sensitive to the legitimate needs of employees who are vulnerable to COVID-19, such as older employees with other health conditions, immune-compromised employees, or employees with other pre-existing conditions that make them more susceptible to the virus and potentially impacted more.
- Employers must provide any government-mandated leaves, including those under the Employment Standards Code, and applicable benefits to those employees who qualify for them and are legitimately unable to work because of COVID-19.
However, employers can continue to expect that employees will perform their work unless they have a legitimate reason for why they cannot do so. It is also not discriminatory to lay off employees with no work to do because of the impacts of COVID-19, so long as the employees subject to lay-off are not selected based on any protected grounds.
The full information bulletin can be found here.
Alberta Workers’ Compensation Board (WCB)
WCB has also released an information bulletin for employers containing guidance on when COVID-19 infection will be covered by workers’ compensation. Only COVID-19 occurrences that are work-related will fall within the authority of WCB. Each claim will be evaluated on a case by case basis, but all COVID-19 occurrences must satisfy the following conditions to qualify as being work-related:
- The nature of employment involves sufficient exposure to the source of infection; and
- The nature of employment is shown to be the cause of the condition or creates a greater risk of exposure to the worker.
Employers have an obligation to report a case of COVID-19, and any related treatment complications, to WCB if the occurrence meets the above criteria and results in time lost from work. If an employee is exposed to COVID-19 but remains asymptomatic, employers should record this for their workers’ compensation records but do not need to report it to WCB-Alberta.
Employers should be aware that WCB will accept claims where there are symptoms of COVID-19 present but no confirmed medical diagnosis at the time of reporting. In these circumstances, employers should also direct the worker to call Health Link at 811 and follow the advice given.
It is worth noting that reporting will not necessarily be required for all workers who believe they caught the COVID-19 virus from a co-worker or client. This would need to be reported to WCB only if the criteria described above is satisfied and there is a lost-time claim.
Apart from these guidelines specific to COVID-19, the workers’ compensation process remains unchanged and will begin with WCB determining whether the exposure to the disease arose out of the course of employment. If the claim is approved following this review, WCB-Alberta will cover medical aid costs and lost time compensation.
We will continue to update our clients with information as it becomes available. If you have any questions about this topic, other COVID-19 related questions, or would like assistance with developing and/or reviewing pandemic plans, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s other COVID-19 website resources.