Many of you will have heard about the story that hit the news last week of a Manitoba man who was barred from patronizing a restaurant in Seven Sisters, Manitoba because his wife had been diagnosed with the H1N1 flu. The story broke on Richard Cloutier's show on CJOB radio and I was fortunate enough to have been interviewed by him on-air about the human rights implications of the restaurant's decision to deny service. The man has, apparently, now filed a human rights complaint against the restaurant with the Manitoba Human Rights Commission. Time will tell how this case ultimately resolves itself.
While this particular situation involved the denial of services by a service provider, the comments I made on the radio show are equally applicable to employers and the workplace. I thought it might be useful here to let you know what I said and expand upon my comments a bit further:
What is H1N1?
Health Canadaadvises that H1N1 is a strain of the influenza virus that usually affects pigs (and so sometimes this flu is also called the "swine flu"). This virus can, however, make people sick as well. It is a respiratory illness that causes symptoms similar to the regular human seasonal flu.
How do I deal with H1N1?
1. Operate based on Fact versus Fear
When dealing with or otherwise deciding how to address H1N1, businesses of all stripes need to operate on the basis of fact versus knee-jerk fear. This is often easier said than done, especially when dealing with health and safety-related issues, but it is critical. The minute you take action based on fear versus fact, that triggers a risk of running afoul of the many pieces of legislation business owners need to abide by but, in particular, human rights law.
In terms of H1N1, it is important for business owners to understand what it is, how it is transmitted and how to protect against an outbreak. Accessing information on the Public Health Agency of Canada's website on the H1N1 virus or similar information placed on provincial government websites (such as the Province of Manitoba's fact sheets) are key steps.
2. Assume that H1N1 constitutes a disability under human rights legislation
Human rights legislation across Canada prohibits discrimination on the basis of disability or perceived disability. While historically the flu hasn't been considered a disability by human rights commissions, that related to the regular human flu which is very common and usually of short-term in duration. H1N1 has been classified as a pandemic virus by the World Health Organization which may well result in human rights commissions considering it in a different light. Such an approach would be consistent with the Ontario Human Rights Commission's response to the SARS outbreak back in 2003.
It is important to remember as well that human rights commissions take a broad approach to what constitutes a disability. A person can, as a result, be considered disabled on the basis of how they are treated even if they do not have an actual disease or illness. Consider, for example, the man who was barred from the restaurant. He did not have H1N1, his wife did. Yet, the restaurant seems to have treated him as though he had the disease. The H1N1 label had an effect on him anyway. A human rights commission may well conclude that this person was perceived as having a disability and discriminated against as a result of that perception.
In my view it would be wise for employers to assume that H1N1 would be considered a disability by a human rights body and operate on the basis.
3. Uphold your human rights-related responsibilities to all employees impacted by H1N1
The human rights-related responsibilities of employers extend not just to employees who are or may be infected by the virus but also to employees who are not infected.
Employers must ensure that their workplaces are free of discrimination and harassment. This means that they need to:
a. make sure they have a clearly thought out plan to respond to H1N1 in the workplace, one that does not discriminate against employees who have H1N1 or may have been exposed to H1N1. In particular, you want to be able to justify any actions you take in relation to employees who have H1N1 or may have been exposed to H1N1 on the basis of fact-driven health and safety precautions. Here, you would want to follow the lead of public health officials and medical professionals;
b. make sure that you take appropriate steps to accommodate employees who are disabled by H1N1. What type of accommodation will be reasonable will depend on the circumstances. It can, however, include things like permitting the employee to take time away from work, allowing the employee to work from home, or providing the employee with alternate work;
c. make sure to refrain from harassing employees who may have H1N1 or are suspected of having H1N1 and prevent your employees from doing the same. People have a natural fear of the unknown and since H1N1 is still a very new disease you may find your non-infected employees acting out of fear when they find out or suspect a work colleague has come down with H1N1 or has been exposed to someone with the illness. This can result in harsh treatment of their colleagues. Take any complaints of this type of harassment seriously and take appropriate steps to put a stop to any inappropriate behavior.
Conclusion
While the barring of the man from the restaurant is the first incident of this kind that I have heard about relating to H1N1, I'm hopeful that it will be the last. I'm also hopeful that the above information helps you avoid coming into conflict with the human rights legislation in your jurisdiction in relation to how you operate your business if H1N1 knocks on your door.
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