COVID-19: the Human Rights Act, Family Status and Marital Status

As the world at large adjusts to the new reality of living with the risk of the COVID-19 virus, many individuals struggle with the anxiety of what it will mean for their employment.

Most, if not all, employees have been directed to work from home where possible, and a significant number of businesses are implementing temporary layoff strategies to maintain their viability and allow their employees to collect Employment Insurance benefits until it is safe for them to return to work. So what does this mean for health care workers and their families?

Alberta Health Services, the regulatory bodies for different health care professions, and the Unions to which many workers belong have issued guidelines and directives for what health care workers must do if they are symptomatic, and measures in place for screening health care workers to allow them to continue to work, so we will not cover that here.

This article will discuss what to do if family members of health professionals are treated discriminatorily in their own workplaces by virtue of their relationship to that health professional. While we hope this will not be a significant problem, the reality is that many well-intentioned employers could take action they perceive to be appropriate risk management which may contravene the Alberta Human Rights Act.

As of the date of writing, the Government of Alberta has issued the following public health orders:

• Any individual who has travelled outside of Canada must go into mandatory self-isolation for 14 days from their return, plus an additional 10 days from the onset of any symptoms should they occur, whichever is longer.
• Any individual who exhibits COVID-19 symptoms must self-isolate for a minimum of 10 days from the start of their symptoms, or until the symptoms resolve, whichever is longer. Symptoms include cough, fever, shortness of breath, runny nose, or a sore throat.
• Any individual who has been identified as a close contact of a person(s) with COVID-19 must go into mandatory self-isolation for 14 days from the date of last having been exposed to COVID-19, plus an additional 10 days from the onset of any symptoms should they occur, whichever is longer.
• Mass gatherings must be limited to no more than 50 attendees.
• Access to public recreational facilities, private entertainment facilities, bars, and nightclubs is prohibited.
• Visitation to long-term care and other continuing care facilities is limited to essential visitors only.

Health care workers are on the front-line of Canada’s strategy to manage the COVID-19 pandemic, and whether correctly or not, will be perceived as having a higher risk of exposure to the virus. If a health care worker contracts COVID-19, any individual who has been identified as close contact with them must self-isolate as described above. That includes members of the same household (most often family members).

If you have a family member who is quarantined due to a positive test in the household in this way, please encourage them to check with their employer to see if they have a paid sick leave or short-term disability plan. If they do not, encourage them to apply for Employment Insurance sickness benefits.

At the time of writing, only members of a household where an individual has tested positive for COVID-19 are required to quarantine. The household members of health care providers who are quarantining after displaying symptoms and are awaiting test results are only required to stay home if advised to do so by Public Health.

If a family member of a health care worker is discriminated against in the course of their employment by virtue of the fact they live in close contact with an individual who is perceived to be at higher risk of contracting the COVID-19 virus, it may be a contravention of the Human Rights Act under the protected grounds of family or marital status.

WHAT IF THE FAMILY MEMBER OF A FRONT-LINE HEALTH WORKER IS DISCRIMINATED AGAINST AS A RESULT OF THEIR PERCEIVED EXPOSURE TO COVID-19?

Alberta human rights legislation prevents the discriminatory treatment of individuals in the course of their employment on the protected grounds listed in the legislation. Section 7 of the Alberta Human Rights Act provides, in part, as follows:

7(1) No employer shall

• Refuse to employ or refuse to continue to employ a person, or
• Discriminate against any person with regard to employment or any term of the condition of employment,

because of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status, or sexual orientation of that person or any other person.

How does this apply?

“Family Status” is defined in the Act as the status of being related to another person by blood, marriage, or adoption. The Act prohibits discrimination or negative treatment towards an individual based on their relationship with a family member. For example, it would be contrary to the Act to fire an individual because their spouse, who worked for the same employer, was fired.

“Marital status” is defined by the Act as being married, single, widowed, divorced, separated, or living with a person in a conjugal relationship outside marriage. This definition includes both same-sex and heterosexual relationships. For example, it would be contrary to the Act for any employer to refuse to hire someone just because their spouse works for the same company.

What is “discriminatory treatment” in the employment context?

In this context, discriminatory treatment could be a termination, a temporary lay-off, or workplace harassment of some kind. For a human rights complaint to succeed, it is not necessary for the complainant to prove that the protected ground (family or marital status) is the sole or determining reason for the adverse effect, merely that it was one of the contributing factors. The question to be asked is: “but for my relationship with the health-care worker, would I have been singled out for adverse treatment?” If the answer is no, that individual may have a valid human rights complaint.

Keep in mind that it is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19. However, if the real reason for the discriminatory treatment is mere that the employee is perceived to be at a higher risk of COVID-19 than an employee who is not related or living with a health care worker, then that individual may have a valid human rights complaint. We propose the following scenarios as potential contraventions of the Act:

• The son of a front-line nurse is a retail worker. Their employer recalls all of its staff after a temporary lay-off, but decides to terminate that worker because the employer is concerned that the worker may be at higher risk of contracting COVID-19 due to the fact their parent is a health care worker;
• An employer is making the decision of which employees to keep on payroll while working from home, and which employees will be issued a temporary lay-off notice. The brother of a physician, who lives with that physician, is selected as one who will be given a temporary lay-off. When asked why the employer says “because you live with your brother who is at the hospital all day, you’ll probably going to get the virus anyways”;
• The common-law partner of a Respiratory Therapist is working on an essential construction project. The foreman of the project is aware that her partner is a Respiratory Therapist, and sends her home while keeping the rest of the crew at work. The common-law partner believes she was the only one sent home because the foreman perceives her to be a high risk of contracting coronavirus through her Respiratory Therapist partner.

The above are examples of an employer discriminating against an employee based upon their family or marital status. It is by no means exhaustive, and commonly employers will not explicitly state the reason they are choosing an employee to be terminated or laid-off. It is important to speak with an employment lawyer to determine whether there are valid grounds to pursue a human rights complaint

Note: as COVID-19 represents a novel and evolving situation, there have been no reported decisions that deal with the above circumstances. The foregoing is submitted as general legal information, and not specific advice. This is not intended as an exhaustive discussion of potential breaches of human rights in relation to COVID-19. Any individuals who wish to pursue such a complaint are encouraged to reach out to a lawyer at Taylor Janis for assistance and advice.

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