Can I Be Fired For Being Off Sick With The Flu?

Is influenza a disability under the Human Rights Code?
The answer may surprise you.

Runny noses, stuffed sinuses, headaches, pain and soreness. Yes, it is that time of year again – flu season. So how does the flu affect employees?

The flu and other viruses often result in significant time being taken away from work, which can influence an employee’s pay if they don’t have full sick leave benefits.

The absence of an employee from the workplace can also cause employers great frustration. Employers must then get others to step up or step in to fill the vacancies. In rare instances, this frustration can boil over and employers may even dismiss an ill employee.

You might think that the dismissal of an ill employee would be considered discrimination and, consequently, that the Human Rights Code would come into play. Section 13 of the Human Rights Code prohibits discrimination in employment on several grounds including physical or mental disability. Over the years, disability under the Human Rights Code and other similar pieces of legislation has been interpreted to include many ailments and conditions including depression, alcoholism, migraine headaches, kleptomania, drug addiction, obesity, and there is even one case where smoking was considered a disability.

So of course, the flu would be considered a disability too, right?

Surprisingly, the answer is generally no.

There are numerous decisions where influenza has been held not to be a disability for the purposes of the Human rights Code. See, for example, Chang v. B.C. (Ministry of Small Business and Revenue) (No. 2), 2007 BCHRT 148 wherein a woman alleged that she was, in part, discriminated against because she was suffering from influenza. The Tribunal considered whether influenza constitutes a physical disability. In coming to a decision, the Tribunal considered the law with respect to a physical disability under the Human Rights Code in British Columbia and found that a physical disability must meet the following definition:

The concept of physical disability, for human rights purposes, generally indicates a physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life.

In the Chang case, the BC Human Rights Tribunal concluded that that the flu did not meet the above definition, and was not a disability under the Human Rights Code.

In another case, O’Brien v. Phoenix Restorations and others (No. 2), 2009 BCHRT 203, the Tribunal held that flu generally does not have enough permanence to be considered a disability under the Human Rights Code.

To the surprise of many, the Human Rights Code only prohibits some types of discrimination, not all types of discrimination as illustrated by the above cases.

So if you are terminated because of flu, are you without recourse?

No, you wouldn’t be without recourse – in most circumstances, termination of employment related to an employee’s flu or cold is in not termination for just cause, which means that an employee in such a scenario can pursue a claim for severance or pay in lieu of notice. This may be true even if you are let go during your probationary period.

Has your employer terminated your employment because of the flu, or has your employer changed your terms of employment after you have been ill?  If so, and if you have concerns about your rights in such a scenario, please do not hesitate to contact us today for a consultation.