Long COVID is the term used for individuals that are experiencing lasting effects from COVID-19. It includes a range of new or ongoing symptoms and effects that can last for a long period following the initial infection. Individuals across Canada have reported a wide range of symptoms, including, most recently long lasting mental impairment. Symptoms can last for weeks or months and could also include:
- Ongoing fatigue
- Difficulty breathing
- Headaches, dizziness
- Chest pains
- Loss of taste or smell
Other symptoms may also be present, and in fact individuals with more serious infections may also suffer from organ damage or other long-term impacts. Clearly some individuals will have more significant outcomes than others, so everyone’s situation must be considered in context. Long COVID therefore does not have a strict definition on its own, it is instead a collection of symptoms which will vary from person to person.
According to a recent guidance release by the United States Department of Health and Human Services (HHS), “Long COVID” could be a disability under the United States’ Americans with Disabilities Act of 1973 (ADA). While US laws do not apply to workplaces in Canada, there is legislation in every Canadian jurisdiction, including federally, protecting employees (and others) with disabilities from discrimination and requiring accommodation to the point of “undue hardship” from employers. The guidance released by the HHS does not affect Canadian law but offers some helpful guidance on recognizing Long COVID.
While the HHS has provided a helpful tool for American employers to consider their obligations – Canadian authorities have not provided such specific guidance on Long COVID. This is likely because Long COVID, like other illnesses, is already covered by human rights legislation. While this article deals with human rights concerns, in the context of long-term disability insurance, Long COVID has already become a point of contention.
Human Rights Legislation
While this article focuses on Ontario, many of the principles will be the same across Canada. The key question is – what is the definition of a “disability” and does Long COVID tick the necessary requirements?
The term “disability” is defined in s. 10 of the Ontario Human Rights Code (OHRC) and, for the purposes of this post, paragraphs (a) and (b) are of particular interest:
- any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
- a condition of mental impairment or a developmental disability, […]
Decisions by the Ontario Human Rights Tribunal have frequently explained that the definition of disability should be understood broadly. This means that the answer on whether Long COVID is a disability under the OHRC is that it depends on the factors and the individual context of the employee. In some cases, an employee’s experience with Long COVID may seriously impact their ability to perform their work, while in other cases the symptoms may be mild or the type of work the employee is doing is not impacted by the symptoms the employee is experiencing. An individual working from home with a cough may be able to perform their work as readily as they did prior to COVID-19, while a chef with an extended loss of smell/taste – well, that may be a concern.
An employer will need to consider, without requesting diagnosis or other confidential medical information, the circumstances of each employee: what sort of Long COVID symptoms do they have, what are the issues the employee is describing and what measures can be taken (assuming a disability is present) to accommodate the employee.
If an employee fatigues easily, a change to work hours may be a reasonable accommodation. If an employee is suffering from “brain fog” or intellectual impairment and the employee works a job requiring exceptional care and attention – are there accommodations available that could assist in the employee in working; can deadlines be extended; can work pace be slowed down? The list of potential accommodations is endless and contextual.
Ultimately, if the employee requests it or the employer becomes aware, of a situation where there is a rule or requirement that could impact an employee with a disability (Long COVID or otherwise) the employer’s duty to accommodate may be activated. The employer will need to ensure that it conducts an assessment and gives thought and consideration the types of accommodations that may be available. Then, if accommodations are necessary, the employer will need to show that it accommodated the employee to the degree required short of undue hardship.
Undue hardship as a limitation to accommodation is not as easy as claiming that it is too hard to accommodate an employee. There are only three considerations the employer can consider:
- Outside sources of funding
- Health and safety requirements
Evidence is very important, and it must be objective and quantifiable. The organization must provide details – facts and figures – that accommodating the employee will cause undue hardship to the organization. Just stating that something is “too expensive” without evidence that it is, generally will not cut it. Accommodation and undue hardship are an individualized, context-specific requirement that require careful analysis of each employee’s situation.
While the US HHS has decided to release specific guidance for US workplaces, Canadian workplaces can continue to use the same analysis as they do for any workplace accommodation or disability discrimination claims.
If your organization requires assistance regarding analyzing and providing accommodation requirements, whether for Long COVID or otherwise, do not hesitate to contact Bridge Legal & HR Solutions at 647-794-5442 or at email@example.com. Our website can be found at bridgelegalhr.ca.