Nova Scotia Human Rights Commission (NSHRC) Statement on COVID-19 Pandemic
Statement updated November 26, 2020, 3:00 p.m.
Overview
Following the lead of the United Nations High Commissioner for Human Rights, the Nova Scotia Human Rights Commission (NSHRC) urges Nova Scotians to keep human rights principles under Nova Scotia Human Rights Act (Act), the Canadian Charter of Rights and Freedoms (Charter) and all Public Health direction at the centre of decision-making during the coronavirus (COVID-19) pandemic.
Governments at all levels have moved with exceptional speed to slow the spread of COVID-19. As the province takes steps to allow businesses to reopen under guidance from Public Health it is important that organizations recognize their human rights obligations and consider the potential disproportionate impacts of COVID-19 on the vulnerable groups they employ and/or serve. These vulnerable groups could include, people with disabilities, older people living alone or in institutions, and low-income communities who have unequal access to health care, childcare and/or are often underemployed.
Now more than ever, people living in vulnerable circumstances need our support. We must ensure that we strike the appropriate balance between protecting public health and safety and respecting human rights. We must be fully mindful of how this crisis is amplifying the challenges and disadvantages faced by people living on the margins of society.
This statement is to provide some basic human rights information to assist you in making decisions around providing services and employment planning such as, time off for employees to handle their own health related issues as well as care-giving responsibilities arising from the Covid-19 pandemic. The NSHRC would like to provide some basic information for employers and service providers so they can follow the directions of the Public Health officials, without fear of violating a person’s human rights.
The NSHRC and relevant human rights laws recognize the importance of balancing people’s right to non-discrimination and civil liberties with public health and safety. We want Nova Scotians to assist one another in the best and safest way they can.
Discrimination and COVID-19
Discrimination including harassment against any persons or communities related to COVID-19 is prohibited when it involves a ground under the Act, in the areas of services, housing, employment, vocational associations, and contracts.
The Act protects against discrimination based on 18 grounds, whether perceived or otherwise, including disability, ethnic origin, place of origin, race, and irrational fear of contracting an illness or disease. COVID-19 is not isolated to people of any particular ethnic origin, place of origin or race.
The Commission would like to take this opportunity to remind all Nova Scotians that making generalizations around COVID-19 and any particular group of people whether they be from a racialized community such as African Nova Scotians or individuals of a particular national or ethnic origin, can be harmful and lead to discrimination against already vulnerable communities. There is no proof available to show that any one group of individuals is prone to be a carrier of this virus.
Some restrictions, such as those imposed by the Public Health officials on those who have recently returned from international travel are reasonable and not discriminatory. However, depending on the circumstances, the Act’s grounds of place of origin, ethnic origin, and race may trigger human rights obligations under the Act, if one is acting outside of the Public Health direction.
Employers, housing managers and service providers should ensure any restrictions are consistent with the most recent advice from medical and Public Health officials and are justified for health and safety reasons.
Employment
The NSHRC’s policy position is that negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, are discriminatory and prohibited under the Act. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.
An employer may send an individual employee home or ask them not to work because of concerns over COVID-19, if 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. It is always best to contact the NSHRC if you have questions around a specific circumstance to get advice.
Employers may want to review their absenteeism policies, so they do not negatively affect employees who cannot work in connection with COVID-19. An employer should not discipline or terminate an employee who is unable to come to work because medical officers under the Health Protection Act, have quarantined them or have advised them to self-isolate and stay home in connection with COVID-19.
Many employers have been making accommodations for employees who have been looking after children as a result of school and day-care closures or taking care of vulnerable or sick family members. Employers should consider how they can accommodate staff facing a lack of child-care as they transition back to work. Employers can offer employees flexible shifts/hours, or working remotely where feasible, as a good practice.
These care-giving responsibilities relate to the Act’s ground of family status. In some cases, medical and public health advice might indicate special restrictions for persons with chronic illnesses and other vulnerabilities, and employers should be prepared to accommodate such situations as well.
At the same time, employers are entitled to expect that employees will continue to perform their work unless they have a legitimate reason for why they cannot. If an employee is required to self-isolate for legitimate reasons, the employer is entitled to explore alternative options for how the employee may still continue to perform productive work for the employer (for example, telework). It is also not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19, but employers should also check with the Labour Standards Code to ensure they are in compliance, as well.
Consistent with the necessary doctor’s documentation normally provided by an employee to seek an accommodation relating to a disability, employers should take requests for accommodation in good faith. Employers are asked to be flexible and not overburden the health care system with requests for medical notes. Anyone who feels they need to visit a health care provider in connection with COVID-19, should follow Public Health official’s guidance and for contact information and screening.
Employers may have other obligations, for example under the Occupational Health and Safety Act and the Labour Standards Code. The NSHRC encourages employers to consult the provincial government website for the most recent advice.
Services and housing
All Nova Scotians also have the right to be free from discrimination including harassment related to COVID-19 in services and housing based on grounds under the Act.
Services include, among other things, education institutions, retail shops and malls and the hospitality industry including restaurants, bars, hotels and entertainment facilities. Housing providers include condo corporations, rental apartments and residential institutional facilities like long-term care and retirement homes.
We should be careful not to panic and react to people in a discriminatory manner because we may have an “irrational fear” of contracting COVID-19. For instance, Nova Scotians should not be denied access to services solely on the basis that they are working in essential services such as health care or as first responders. All of our actions and decisions around public safety and playing our roles in stopping this virus from spreading should be carried out in a fair and equitable manner, while following the instructions of the Public Health Officers, as they continue to advise us on how we can fight the spread of the virus.
Negative treatment of service recipients or residents who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, could be discriminatory and prohibited under the Act. Organizations in these areas may also have a duty to accommodate persons in relation to COVID-19.
Again, we must keep in mind the balance of respecting our human rights but also following the advice and instruction of the Public Health officials. As long as service providers adhere to that advice they will not be violating the Act.
The NSHRC encourages all service and housing providers to take universal precautions based on the most current advice from Public Health officials.
Prisons and other government-run or regulated residential institutions
The NSHRC urges a human rights-focused approach to addressing evidence-based risks associated with COVID-19 in these facilities. This should include having comprehensive and transparent decision-making and policy restrictions on face-to face or contact visits that are necessary, legitimate and proportionate to prevent or respond to COVID-19 outbreaks, as well as compensating for restrictions on contact visits by increased access to alternative means of communication such as email, voice or video calls. Steps should be put in place to ensure the right to maintain adequate personal hygiene and the right to daily access to the open air.
Reasonable efforts should be made to reduce overcrowding within custody or other facilities by using all existing legal or policy provisions regarding discretionary releases; releasing or managing in the community individuals who do not pose a risk to the public, including people who are in pre-trial detention for or have been convicted of non-violent offences; releasing or managing in the community individuals with limited time left in their sentences; and issuing compassionate releases for vulnerable prisoners, including elderly people, pregnant women, people with compromised immune systems, and people with mental health disabilities.
For more information
Nova Scotian Public Health officials are working with their partners in the health care system implementing a plan to monitor for, detect and, if needed, isolate any cases of COVID-19. People who want to learn more about COVID-19 can visit the government at novascotia.ca/coronavirus