COVID19

Frequently asked questions about Covid workplace policies

By: Alexander Alstad

Can my boss set up a Covid workplace policy?

Under the law, employers can run their business as they see fit, as long as they follow the law. Therefore, the answer is yes, unless there is a legal reason to the contrary (for example, a contract or a law), they can set up a Covid workplace policy.

Can my boss fire me for not following the Covid workplace policy?

Unless a law says otherwise, an employer can fire anyone, for any reason, if they either give working notice or pay them for the termination. Therefore, the simple reason is yes. 

However, suppose an employee refuses to follow a Covid workplace policy. In that case, this might give the employer just cause, which would allow them to terminate the employee without paying them. This is less about Covid than employees having to do what their employer says, as long as it is legal. However, the employer has to prove they had just cause to fire their employee.

How do my human rights come into this?

Your rights come into this because all employers in BC have to follow either the provincial or federal human rights law. This means they cannot discriminate against their employees or customers. In addition to this, the Charter of Rights and Freedoms may grant further protections for government employees.

When will a Covid workplace policy clash with the Human Rights Code?

A Covid workplace policy will clash against the Human Rights Code if it negatively affects a protected characteristic (such as race or ethnicity).

Is a Covid workplace policy likely to discriminate against me due to my political beliefs?

This is unlikely. The Tribunal has taken a narrow approach to political beliefs. An employer does not discriminate due to taking actions or making an employee take actions that they see as conflicting with their political beliefs. Rather, the Human Rights Code prevents employers from taking actions such as firing people for having certain political beliefs.

So, for example, a policy of firing libertarians would likely infringe on their human rights. However, an employer deducting income tax from a libertarian's paycheque would likely not infringe on their rights regardless of how objectionable they found it. Similarly, a Covid masking policy would probably not infringe on someone's human rights regardless of their political views.

What if I have a health reason that prevents me from wearing a mask or getting vaccinated?

If a health reason would mean your employer's Covid policy would detrimentally affect you, the policy is likely discriminatory. Should this policy be in place for no reason, they would have to remove it. However, suppose your employer has a bona fide (good faith) reason for the policy to be in place. In that case, your employer can likely keep the policy but would have to accommodate your protected characteristic.

What does accommodation mean?

Accommodation, or the duty to accommodate, requires an employer to do their best to ensure that their policies either have no or as little as possible negative impacts on people due to a protected characteristic. Suppose the policy has a worthy goal, such as increasing profits, safety, or morale. In that case, the employer must consider accommodating the employee while still accomplishing their aim. They must do so to the point of undue hardship.

What does accommodation look like in practice?

Let's take the example of a grocery store that has set up a mask requirement for all of its employees. If an employee had a health problem that prevented them from wearing a mask, and the employer was made aware of that, they would have to consider how to accommodate. This might involve putting the worker outside or in well-ventilated areas if such work was available.

Can my boss ask me to do things for accommodation?

Yes. Accommodation is a two-way street, and just as your boss can't stubbornly refuse to accommodate you, you may have to work with them to figure out a solution. This doesn't involve giving up your rights or dignity. Still, the employee ought to participate in the process of accommodation in good faith.

What if my boss refuses to accommodate me?

Let's say that you have done your best to explain your need for accommodation, but your boss remains unmoved. What are your options? Well, first, you might want to consider getting legal advice to see if you have a solid claim. In addition to the Vancouver Island Human Rights Coalition, you can find other resources here. Assuming you have a solid claim, your next step is going to be filing a complaint with either the federal or provincial human rights tribunals.

Additional Resources

You can find out more about human rights and employment at: 

You can find out more about the duty to accommodate at:

You can find out more on Covid and human rights at:

Disclaimer

The VIHRC blog is for informational purposes only and is not intended to be legal advice.

We would like to acknowledge that the lands on which the Vancouver Island Human Rights Coalition office is located, are the traditional territorial lands of the Lekwungen peoples (Songhees and Esquimalt First Nations). We thank the Lekwungen peoples for allowing us to work and assist those in need, on their lands.