COVID-19 FAQs

Below are answers to some commonly asked questions about COVID-19. The Commission has collaborated with several other organisations to provide information relevant to other processes and areas of law as well. For questions relating to processes or legislation other than those set out in the Yukon Human Rights Act, please contact the appropriate organisation. If you don’t see the information you are looking for, contact us and we would be happy to assist you.

Disclaimer: This following statement does not constitute legal advice. It is provided only for informational purposes, and does not suggest what, if any, decision might be made by a Human Rights Tribunal in any specific complaint.

COVID-19, Disability and the Human Rights Act

As per the Yukon Human Rights Act, employers, landlords and service providers must not discriminate against employees, tenants or customers on the basis of a characteristic or perceived characteristic listed in section 7 of the Human Rights Act. For example, discrimination can include denying someone a service or harassing them on the basis of their disability. The Human Rights Act also provides that employers, landlords and service providers must accommodate persons with protected characteristics to the point of undue hardship.

If you believe you have been discriminated against or have any questions about your legal obligations under the Yukon Human Rights Act, please feel free to contact the Commission.

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Yukon Human Rights Commission COVID-19 FAQ's

FAQS

Employers, landlords and other services providers have an obligation to protect their employees, tenants and customers. Reasonable public health and safety measures taken to prevent and reduce the spread of COVID-19, especially in accordance with directives from the Chief Medical Officer of Health, are unlikely to violate the Yukon Human Rights Act.

Yes. In most cases, an employer, landlord or service provider may implement requirements for employees, tenants and customers, as long as the requirements do not discriminate against a person on the basis of a protected characteristic under the Human Rights Act, such as disability. A person who chooses to not wear a mask because of a preference, and not based on a protected characteristic set out in the Yukon Human Rights Act, is not protected under the Yukon Human Rights Act.

An employer or service provider may implement a mandatory mask policy or ask reasonable screening questions consistent with public health advice, such as:

  • Are you experiencing symptoms of COVID?
  • Do you have a recent history of exposure to a known or suspected case of COVID?
  • Do you have a recent history of travel outside Yukon?

Employers, landlords and service providers may request medical information to support a request for such an accommodation. However, they are not entitled to a diagnosis as per human rights law. A medical note confirming that the employee, tenant or customer is unable to wear a mask for medical reasons should suffice. Employers, landlords and service providers must protect private medical information. Individuals relying on medical exemptions are advised to carry a doctor’s note to support their request for accommodation.

Rules and requirements set by an employer, landlord or service provider must consider accommodations for persons on the basis of a protected characteristic to the point of undue hardship. For example, some individuals may have a diagnosed medical condition, such as a serious respiratory condition, that prevents them from wearing a mask.

Premier Silver stated in his November 24, 2020 press conference that the mandatory-mask order that came into effect on December 1, 2020 requires Yukoners over the age of 5 to wear a mask in public spaces, with only “very limited exceptions.” He stated that one such exception may be where someone has a medical condition that prevents someone from wearing a mask.

Medical testing to determine fitness to safely perform work, or protect people receiving services or living in congregate housing, may be permissible under the Yukon Human Rights Act if the testing is reasonably available, and shown to be effective and necessary in circumstances, such as a public health emergency.

It is important that testing be done with informed consent and that information is provided about why the medical test is needed in the circumstances. Organizations should only seek information from medical testing that is reasonably necessary to protect everyone’s health and safety, while excluding unnecessary information that may identify a pre-existing disability. Furthermore, sharing medical information may undermine the dignity and privacy of persons with disabilities. Requests for medical information should be done in a way that intrudes as little as possible on a person’s privacy, and does not go beyond what is necessary to ensure everyone is healthy and safe and/or to accommodate an individual’s needs.

A test result should not lead to automatic negative consequences such as employee termination, complete denial of service, or eviction from housing.

Organizations have obligations under the Yukon Human Rights Act to accommodate people who are negatively impacted by COVID-19 test results, unless it would amount to undue hardship based on cost or health and safety. Everyone involved should be flexible in exploring accommodations, including alternative ways a person might continue to safely work, receive a service, or be housed.

The particular accommodation should fit the person’s need(s) and the circumstances to the point of undue hardship. As such, suitable accommodations will likely differ on a case-by-case basis. In some circumstances, the suitable accommodation may be to allow the person to receive services without a mask. However, a reasonable accommodation might instead take other forms, and could include: curbside pickup, delivery options, alternative hours of service, personal shoppers, or remote delivery of services through telephone, email, or videoconferencing.

Whether or not an accommodation is consistent with the requirements of the Yukon Human Rights Act will depend on the circumstances.

If a service provider has established a “mandatory mask” policy for customers, a service provider should prominently display their policy together with a means of discussing possible exemptions or accommodations.

It is also important to inform employees about the order, how to implement it, and what to do when a person wants to enter without a mask. In many cases, it will be obvious that a customer is unable to wear a mask, such as with infants and children under the age of five (5). In cases that are not obvious, an employee may wish to have a manager or supervisor respond to the customer.

Service providers are not entitled know a customer’s specific medical diagnosis. If a service provider determines that a customer without a mask cannot be admitted to their business or service, they should attempt to provide the service in an alternate way – unless doing so creates an undue hardship.

Residential facilities disproportionately house people who identify with protected characteristics under the Yukon Human Rights Act, including inmates, people with disabilities, elderly people, children, and other vulnerable groups. Care institutions have a duty to accommodate a person’s disability-related needs, unless doing so would cause undue hardship based on cost or health and safety.

It is important that human rights laws balance an individual’s right to non-discrimination and civil liberties with public health and safety considerations. As such, decisions should be based on the evidence-based risks associated with COVID-19. Restrictions such as limiting individuals from visiting their loved ones may be justified for health and safety reasons, particularly if such restrictions are based on up-to-date information from medical and Public Health officials. However, there may be instances where certain individuals may require accommodations, such as increased access to phones or online contact with loved ones, or continued access to their support persons.

Current Government of Yukon public health information indicates that anyone experiencing symptoms should not attend work. However, an employer should not send an individual employee home or ask them not to work because of concerns over COVID-19 unless the concerns are reasonable and consistent with the most recent advice from medical and public health officials. In unique circumstances, an employer might have other health and safety concerns that could amount to undue hardship, but they would need to be able to show objective evidence to support such a claim.

It may be discriminatory for employers to discipline or terminate employees for being unable to work in connection with COVID-19. Disabilities and family status (which includes caregiving responsibilities) are protected characteristics under the Yukon Human Rights Act. An employer is required to accommodate employees with special needs related to their family status and disabilities to the point of undue hardship. Caregiving responsibilities, which relate to the Human Rights Act’s protected characteristic of family status, could include situations where another family member is ill or in self-isolation, or where a child’s daycare or school is closed due to COVID-19.

Accommodations are not required to be perfect or ideal. Reasonable accommodations may include leave, alternative work hours, or an arrangement to work remotely from home. Employers should be flexible and consider avoiding overburdening the health care system with requests for medical notes, as unnecessary visits to medical offices increase further risk of exposure for everyone.

An employee who cannot work because of COVID-19 may be entitled to sick leave or disability leave benefits offered by the employer or available under government benefit programs.

It is not a violation of the Yukon Human Rights Act to lay off employees due to a lack of work  caused by the impacts of COVID-19, so long as employees are not selected for lay-off based on a protected characteristic. Furthermore, the Human Rights Act does not require employers to provide additional financial assistance to employees who are impacted by COVID-19. Individuals who are in a crisis or emergency situation because of COVID-19 can contact the Yukon Human Rights Commission for referrals to agencies that may be able to assist.

The Yukon Human Rights Commission takes the position that the protected characteristic of disability is engaged in relation to COVID-19, whether it is diagnosed or perceived to be diagnosed. However, flus, colds, and other short-duration conditions have historically not been considered disabilities under the Yukon Human Rights Act and, therefore, do not trigger the protections guaranteed under the Act.

Employers and staff may be found to have discriminated against their colleagues if they harass employees based on a perception that they have COVID-19 due to their race or national origin.

Employers are entitled to expect that employees will continue to perform their work unless there is a legitimate reason why they cannot. An example of a legitimate reason can include situations where it may not be safe for the employee to be at work if they are immunocompromised.

A landlord may be found to violate the Yukon Human Rights Act if they evict a tenant for being diagnosed with, or are perceived to be diagnosed with, COVID-19.

A landlord may not be violating the Yukon Human Rights Act if they evict a tenant for non-payment of rent, which may be due to job loss and COVID-19.

Although anyone is free to file a complaint with the Commission at any time, the Yukon Human Rights Commission will only accept a complaint for investigation if an individual alleges discrimination on the basis of a protected characteristic (i.e. disability or religion) and was not accommodated. The Yukon Human Rights Commission does not have jurisdiction to accept a complaint for investigation if the refusal to wear a mask is due to a personal preference, as that circumstance does not involve a protected characteristic.

A person making a complaint on the basis of disability should be able to provide medical information to the Commission confirming that they have a disability that prevents them from wearing a mask. They should also be able to show a reasonable attempt to receive accommodation, recognizing that accommodations are not required to be perfect or ideal.

A person making a complaint based on the assertion that wearing a mask interferes with a religious belief will need to provide information to the Commission showing that not wearing a mask is a sincerely held belief related to their religion. Again, that person should be able to show a reasonable attempt to receive accommodation, recognizing that not all resolutions will be perfect.

A party against whom a complaint has been made will have an opportunity to provide a response to an accepted complaint. This includes information about what accommodations were offered and available. They will also be able to provide information explaining why they could not accommodate customers, tenants or employees who are unable to wear masks, including why it would be an undue hardship to do so. It is important to note that hardships such as concerns about safety must be real, not just perceived.

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Yukon Workers' Compensation Helath and Safety Board COVID-19 FAQ's

  • The nature of some work may put select workers at greater risk of contracting COVID-19 such as emergency personnel and front-line workers
  • COVID-19 may be considered a compensable illness under the Workers’ Compensation Act when linked to a worker’s employment
  • Any worker who believes they have contracted COVID-19 whilst at work is encouraged to submit a claim
  • All claims will be investigated and decided on an individual basis taking into account the unique facts and circumstances
  • Workers and employers have the same rights and responsibilities in the event of a workplace injury or illness regardless of whether the worker is working from home or at the regular workplace
  • A home office should offer the same level of safety and security as the employee would receive at their regular workplace
  • When an employee is working from home, they are most often working alone; while working alone is not a risk in itself, it can present a unique situation should something unexpected occur
  • Any worker who believes that their injury is work-related is encouraged to file a claim
  • All claims will be investigated and decided on an individual basis taking into account the unique facts and circumstances
  • A mask is a piece of equipment that cover’s the wearer’s nose, mouth and chin; it is fixed to the face with straps, ties or elastic, either behind the head or with ear fixtures
  • Masks are important to reduce the spread of COVID-19 alongside other controls captured in the Safe-Six
  • Employers should provide signage on the mandatory mask policy
  • Employers are responsible for providing masks; employees may use their own non-medical masks
  • Not all persons are able to wear masks, for example, due to a health condition
  • Employers must develop a policy to address these situations before they arise
  • Accommodations for an individual who cannot wear a mask must not result in reduced protection for workers
  • Employers may need to implement other control measures to replace the protection that would be afforded by the wearing of a mask
  • A fundamental right under the occupational health and safety system is a worker’s right to refuse to perform unsafe work
  • Yukon’s Chief Medical Officer of Health requires Yukon employers to have an approved operational safety plan in place or they are not permitted to operate
  • Work is considered safe to perform if the work is an ordinary condition of that workplace and appropriate controls are in place
  • If a worker has concerns about the safety of their workplace, they must report to their supervisor or employer immediately
  • If there continues to be a work refusal after the supervisor, worker and worker representative have investigated the complaint, the employer must report the refusal and reasons to YWCHSB wherein a safety officer will investigate
  • The safety officer will determine if the workplace is operating under an approved operational safety plan; if there is no plan, or if the plan is not sufficient, the safety officer will issue appropriate orders