For Employers

Can I Terminate an Employee Who is Off Sick With the Flu?

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

Ahhh, flu season.  That most charming time of the year, full of runny noses, stuffed sinuses, headaches, pain and soreness, often resulting in significant employee absence.

As an employer, flu season is often the source of great frustration.  You often need to juggle work schedules on short notice, requiring others step up and fill the vacancies, and just when it seems like you might be out from under the worst of it, another wave of flu and absences hits. In rare instances, this frustration can boil over and employers may even dismiss an ill employee.

You might think that dismissal of an ill employee would be considered discrimination and, consequently, that the Human Rights Code would 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. For example, in the case of Chang v. B.C. (Ministry of Small Business and Revenue) (No. 2), 2007 BCHRT 148 wherein the complainant alleged that she was discriminated against, in part, 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 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 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 does this mean that if you dismiss an employee as a result of absence related to the flu, you are within your rights and the employee is left without recourse?

The short answer is, again, no.

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.

Do you have issues with an employee that is ill or away? Before taking steps that could lead to expensive consequences, and which you may later regret, you should seek legal advice. Contact us today for a consultation concerning your employee.

This blog is produced by Waterstone Law Group LLP. This blog is intended for information purposes only and is not offered as legal advice for a specific claim. Subscription to or use of this site does not establish a solicitor – client relationship between the user and Waterstone Law Group LLP or any of the individual contributors. For advice relating to your employment law claim, please contact us to arrange for a consultation.

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