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Coronavirus Pandemic

Designating COVID-19 a disability could lead to workplace accommodation

- Young woman in wheelchair and her colleague discussing online data by desk in office

As evidence emerges of the long-term impact of COVID-19, there has been much discussion among rights group on whether the infection should be treated as a disability to enable focus on recovery and reasonable accommodation for the long-term health impacts of the pandemic.

Prominent Canadian lawyer, like Zena Olijnyk, opine that labelling coronavirus as a disability sets into motion rules to protect workers

Law in Canada has yet to definitively decide on whether being diagnosed with COVID-19 is a disability, but human rights tribunals here have generally viewed that it should be, says employment and labour law specialist Erin Kuzz.

“There has been a bit of evolution on the discussion of whether Covid-19 is a disability since it [the pandemic] began,” says Kuzz, founding members of Toronto-based Sherrard Kuzz LLP. Earlier this year, when the novel coronavirus started to spread across the globe, there was a lot of discussion of whether it was a disability or not, that it was simply “was a bad cold or case of the flu.”

However, she says, if you look at how human rights tribunals, such as the Ontario Human Rights Commission, have looked at the concept of a disability — “that there is a serious impediment to engaging in the tasks of daily life, that it is not something common in the population” — Covid-19 meets that criteria, she says.

“I think as things have evolved, the argument that it’s not a disability is not one that’s likely to be successful today,“ Kuzz says.

Within the context of treating a Covid-19 diagnosis as a disability, it puts into play several factors, Kuzz says. If someone has a positive Covid-19 test, “we obviously can’t have them in the workplace,” she says, but they may be healthy enough to continue to do their work from home. “Particularly in a situation where an employer has been requiring staff to work from home, and that has proven successful, it would be pretty challenging for an employer to say we can’t accommodate you working from home.”

While most jurisdictions in Canada have given employees with Covid-19 related issues the right to unpaid leave with job protection, the fact that it is unpaid leave might prompt some workers with mild cases of the virus to want to continue to work, with pay and benefits, from home. She adds this wouldn’t be an option for someone who works on an assembly line or has a job where they are dealing with the public.

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