Ethically Speaking: Immune-Compromised Work Expectations
Question: What should I do if I’m immune compromised or someone in my family is immune-compromised but I’m still expected to come into work?
Answer: It is now well recognized that an immune-compromised person has a greater risk of severe illness caused by COVID-19 than the average person. This vulnerability triggers disability provisions under the Human Rights Act which protect the employee. Even an employee who did not require accommodation pre-COVID-19 is entitled to reasonable accommodation in the workplace to prevent the risk of their vulnerability materializing into serious illness. For example, employees who have Diabetes may not have required any accommodation pre-COVID-19, but may now require accommodation. The employer is obliged to provide reasonable accommodation to the employee, provided the accommodation does not create hardship for the employer.
Because the Alberta Government has designated lawyers as an essential service, accommodation of higher-risk employees must be balanced with the business’s ability to serve clients. In some instances, this will be an admittedly difficult balance.
First, employers should remain abreast of all guidelines and orders issued by the Government. Where employees come into contact with other employees and clients, measures such as face masks, consistently maintaining physical distancing where possible (ideally 6 feet of space between people), hand sanitizer and frequent cleanings should be consistently practised. Not only should an employer enforce mask-wearing, people in positions of authority should not pressure employees not to wear masks.
Where those measures are not enough to protect an immune-compromised employee, the employer’s obligation to accommodate that particular employee is engaged. The employee should provide documentation to the employer from their doctor indicating that the employee requires accommodation. Details about the employee’s underlying condition are not required. An employer’s insistence that such details be provided infringes the employee’s privacy.
The employer and employee should then work together to establish a protocol that accommodates the employee. Good faith communication will be key to the success of the accommodation. A range of possibilities will enable the employee to do their job safely – which is a win for both parties. The employer and employee should consider what will work, including an office or workspace that is in a more remote part of the office, working remotely, and rotating staff into the office to keep the number of people in the space as low as possible. The employer should maintain ongoing communication with the employee to ensure that the arrangement remains effective.
Finally, if an employer refuses to work with an employee to provide reasonable accommodation, the employer may be acting contrary to Rule 6.3-5 of the Law Society of Alberta Code of Conduct which prohibits lawyers from discriminating against any person. The employer may also be acting contrary to the Human Rights Act and could face a complaint to the Human Rights Tribunal for failing to accommodate the employee.
The past year has established that lawyers and courts are adept at responding to the challenges posed by the pandemic, and that in many instances, working remotely is reasonable for all or many employees. Clear and consistent communication between the employee and employer will provide the foundation for success in both accommodating the employee and achieving the organization’s business goals.