Your rights and obligations under the New Brunswick Human Rights Act during the COVID-19 pandemic

Answer: Yes. COVID-19 is classified as a pandemic. Individuals who exhibit symptoms of COVID-19 or test positive for the virus would, for the purposes of human rights, be considered as persons with physical disability, which is protected as a ground of discrimination under the New Brunswick Human Rights Act.  

Answer: No. The Declaration of Emergency made pursuant to the Emergency Measures Act has not suspended any human rights at this time. However, legal requirements under the Declaration of Emergency may impact the ability of employers, service providers, property owners, organizations or the government to accommodate certain rights protected under the New Brunswick Human Rights Act. 

Answer: It is a violation of the New Brunswick Human Rights Act to make any assumptions about a person's exposure to the virus based on their race or national origin.  

Answer: If a person gets sick from COVID-19, employers and housing or service providers have a duty to accommodate that person’s reasonable employment, housing or services related requests. However, the duty to accommodate ends at the point of undue hardship, i.e. when the accommodation begins to pose serious health or safety risks to coworkers, tenants, or members of the public, or when the cost of the accommodation is too high for the employer, housing or service provider. Employers and housing or service providers must show clear evidence of undue hardship; they must show that they acted reasonably and in good faith, and that they offered individualized assessment where necessary.  

For more details, see the Commission’s guideline at: 

https://www2.gnb.ca/content/dam/gnb/Departments/hrc-cdp/PDF/Guideline-Accommodating-Disability-at-Work-New-Brunswick.pdf

Answer: It depends on the nature of your employment. Typically, an employee does not have to disclose a diagnosis to their employer. However, flus, colds, and other short-duration conditions have historically not been considered disabilities under the New Brunswick Human Rights Act and, therefore, do not trigger the protections guaranteed under the Act. However, COVID-19 is a pandemic and if someone contracts the virus it may be interpreted as a physical disability under the Act; therefore, if you have tested positive for COVID-19, it would be reasonable, necessary, and responsible, in accordance with public health guidelines, to disclose your condition to your employer. 

Employees who work from home and have no physical contact with their coworkers may not need to disclose their diagnosis to their employer, but they must fulfill their obligations as directed by provincial and federal health authorities and pursuant to the corresponding legislation. 

Answer: If an employer has legitimate reasons, based on authentic information, to believe that an employee has COVID-19, it would not be discriminatory for the employer to refuse the employee from entering the workplace (depending on the nature of the workplace), or to take other measures to reduce contact with that employee, until the employee either ceases to have symptoms or tests negative for the virus. Under such circumstances, an employer could "force" an employee to get tested. 

Answer: No. It could be a violation of the New Brunswick Human Rights Act if your employer terminates your employment because you have been diagnosed with COVID-19 or because they perceive you to have it.

Answer: Under the New Brunswick Human Rights Act, employers, service providers, and housing providers have an obligation not to discriminate against a person with COVID-19. They also have a duty to accommodate a person in relation to the protected grounds, including physical disability, up to the point of undue hardship. For the meaning of undue hardship, see the “General” section above. 

Answer: A worker's right to refuse work falls under the Occupational Health and Safety Act. 

For further information on the right to refuse work, and safety in the workplace more generally, visit WorkSafeNB’s website at https://www.worksafenb.ca/safety-topics/covid-19/covid-19-and-the-right-to-refuse/ or https://www.worksafenb.ca/policy-and-legal/policy/view-our-policies/right-to-refuse-during-pandemics

Answer:  Employers have an obligation pursuant to the Occupational Health and Safety Act to provide their employees with a safe working environment. Several factors come into play in this type of a situation.

Generally, if an employee raises this issue, you can apprise them of the measures that have been put in place to reduce the risks associated with COVID-19 in the workplace.  If the employee refuses to return to work, you should consult your legal counsel to seek appropriate guidance going forward. For more information, employers and employees should consult the WorkSafeNB website at www.worksafenb.ca.

It should be noted that if the said employee identifies with a characteristic protected under the New Brunswick Human Rights Act (for example, physical disability, mental disability or family status), you have a duty to accommodate them to the point of undue hardship. 

Answer: It depends on your responsibilities towards that family member. The ground of family status includes having caregiving responsibilities towards a child or elderly parent. If the family member with the existing condition lives with you and/or relies upon you to provide necessary care to them, and reasonable alternative arrangements are not available, your employer may have an obligation to accommodate you up to the point of undue hardship, including allowing you to stay home. Depending on the benefits provided through your employer, you may need to take an unpaid leave.  

You can obtain further information by contacting the Employment Standards Branch at 1-888-452-2687. 

Answer: If your employer is aware that you have a condition that would be considered a mental disability under the New Brunswick Human Rights Act and it is one that requires accommodation, and you have requested an accommodation, your employer has an obligation to accommodate you to the point of undue hardship. As an employee, you have an obligation to accept all reasonable accommodations offered by your employer to facilitate your continued employment, and you have a duty to provide medical documentation supporting the need for accommodation. This medical documentation needs to set out your limitations or restrictions.  Please note that being anxious in and of itself is not a disability under the Act. Only an anxiety disorder or severe anxiety disorder would be considered a mental disability under the Act. 

Answer: No. You can obtain further information by contacting the Employment Standards Branch at 1- 888-452-2687.  

Besides applying for federal Employment Insurance benefits, laid off employees may also be eligible for New Brunswick’s one-time Workers Emergency Income Benefit: https://www2.gnb.ca/content/gnb/en/departments/post-secondary_education_training_and_labour/promo/nbweib.html  

Answer: Employees have an obligation to seek all reasonable childcare options for their children. If the employee is the only person who can care for their children and they need to stay home to be their care-giver, these responsibilities fall under the ground of family status. The employer has an obligation to accommodate the employee to the point of undue hardship. However, depending upon the employer’s leave policies, the situation may only entitle the employee to an unpaid leave of absence. The employer could look at ways to accommodate including permitting the employee to work from home. 

In addition, retroactive to March 12, 2020, job protection is now in place for employees who cannot go to work due to childcare responsibilities stemming from school and daycare closures.  

More information on job protection can be found here:  https://www2.gnb.ca/content/gnb/en/departments/post-secondary_education_training_and_labour/job_protection.html 

Answer: No. The COVID-19 virus is not connected to any particular race. Harassment by your colleagues based on your race is discriminatory under the New Brunswick Human Rights Act.  

Answer: It depends on the nature of your employment. Your employer has an obligation pursuant to the Occupational Health and Safety Act to provide a safe working environment. If you are in an essential position and need to come into work, employers can ask whether you are suffering from any of the known symptoms of COVID-19.  If your employer notices that you are exhibiting signs of COVID-19, they may require you to go home and obtain further medical information before coming back to work.  

In the case of employees who work from home and have no physical contact with their coworkers, then their employers would not need to screen you, but the employees must fulfill their obligations as directed by provincial and federal health authorities and pursuant to the corresponding legislation. 

You may contact the Employment Standards Branch at 1-888-452-2687 for more information. 

Answer: An employer's obligations to provide a safe work environment falls under the Occupational Health and Safety Act. Employers must ensure that their screening measures are reasonable and not rooted in assumptions based on personal characteristics protected under the New Brunswick Human Rights Act, for example, a person’s race, colour, national origin, age, or a pre-existing medical conditions. 

For more information, visit WorkSafeNB at https://www.worksafenb.ca/safety-topics/covid-19/covid-19-what-to-do-as-restrictions-ease/

Answer: You do not have an obligation to provide your employer with your diagnosis. Where possible, you should provide a medical note to your employer indicating your need for accommodation. Your employer also has the right to request additional medical information, for example, regarding tasks that you can safely perform. 

In keeping with the directives of provincial health authorities, the Commission encourages employers to show flexibility and desist from overburdening the healthcare system with requests for medical notes and additional medical information during this time.  

Remember that your employer has a duty to provide reasonable accommodation, but not the perfect accommodation. The employer’s duty to accommodate ends at the point of undue hardship.

Answer: No. The employer has a duty to accommodate physical disabilities to the point of undue hardship. You would be required to provide your employer with medical documentation supporting the need for the layoff during the COVID-19 pandemic. The duty to accommodate trumps seniority rights.

Answer: Employers have an obligation pursuant to the Occupational Health and Safety Act to provide their employees with a safe working environment and an employee’s right to refuse work falls under this Act as well.  

If you, as an employee, raise that you fear returning to work, your employer can apprise you of the measures that have been put in place to reduce the risks associated with COVID-19 in the workplace. If you identify with a protected ground under the New Brunswick Human Rights Act, and request an accommodation, your employer has an obligation to accommodate you to the point of undue hardship. If you are seeking an accommodation, you will need to provide your employer with a medical note, if your employer requires it, confirming that you are immunocompromised. 

Answer: Answer: If the termination of your employment is due to your medical leave, it could constitute discrimination under the New Brunswick Human Rights Act. However, if you were terminated from your position for reasons unrelated to your medical leave such as closures related to COVID-19, it would not be considered discriminatory under the Act.  

Answer: If your employer’s inability to return you to work has to do with workforce reductions caused by the COVID-19 pandemic and you would have been laid off had you not been on a medical leave, then the employer does not have an obligation to return you to work at this time. However, your medical leave of absence shouldn’t be a deciding factor in your employer’s decision. If it is a deciding factor, it could constitute discrimination under the New Brunswick Human Rights Act.  

Answer: The New Brunswick Human Rights Act does not prevent employers from requiring employees to wear a face mask. However, should an employee be unable to wear a face mask due to a mental or physical disability, the employee has a duty to inform the employer of their inability to do so. Once the employer is advised of same, the employer has a duty to accommodate to the point of undue hardship.

If an employer, however, requires medical documentation to support that the employee cannot wear a mask due to a mental or physical disability, the employee needs to provide it. The medical documentation would need to set out that for medical reasons, the employee is unable to wear a community face mask or any other type of mask. The employer’s duty to accommodate would be on hold until such documentation has been provided. Requests for medical documentation beyond this may not suspend the employer’s duty to accommodate until it has been provided.

Even though an employee cannot wear a mask for medical reasons, they must continue to follow recommendations from the New Brunswick Chief Medical Officer such as following physical distancing rules, coughing into their sleeve, hand washing, etc.

Answer: Tenants are required to pay rent when it’s due but, pursuant to the Declaration of Emergency, the government has suspended the power of Residential Tenancies Officers to evict tenants for non-payment of rent until May 31, 2020.  

Further questions should be directed to the Residential Tenancies Tribunal at www.snb.ca/irent. They can also be reached by email at [email protected], or by phone, 1-888-762-8600. 

Answer: No, you cannot be evicted for being diagnosed with or perceived to have COVID-19. That said, you do need to follow the directives of the provincial and federal health authorities and corresponding legislation.  

If your landlord begins a process because you are not following these directives, it may not be considered discriminatory under the Human Rights Act.  

Answer: Under normal circumstances, these measures could be discriminatory; however, under the exceptional circumstances of the current crisis, such steps would not be regarded as discriminatory. Grocery stores have an obligation to provide a safe environment for all patrons and employees. Because senior citizens and other vulnerable members of the population are more susceptible to COVID-19, allocating special hours is an accommodation to afford these individuals an opportunity to obtain the necessities of life.  

Answer: No. The New Brunswick Human Rights Act prohibits discrimination (whether it’s intentional or not) based, among others, on the grounds of race, colour or national origin in the provision of services available to the public. 

Answer: The New Brunswick Human Rights Act does not prevent service providers from requiring patrons to wear a face mask. However, should a patron be unable to wear a face mask due to a mental or physical disability, the patron has a duty to inform the service provider of their inability to do so. Once the service provider is advised of same, the service provider has a duty to accommodate to the point of undue hardship.

If a service provider, however, requires medical documentation to support that the patron cannot wear a mask due to a mental or physical disability, the patron needs to provide it. The medical documentation would need to set out that for medical reasons, the patron is unable to wear a community face mask or any other type of mask. The service provider’s duty to accommodate would be on hold until such documentation has been provided. Requests for medical documentation beyond this may not suspend the service provider’s duty to accommodate until it has been provided.

Even though the patron cannot wear a mask for medical reasons, they must continue to follow recommendations from the New Brunswick Chief Medical Officer such as following physical distancing rules, coughing into their sleeve, hand washing, etc.