Is the Flu a ‘Disability’ Under the Human Rights Code?
By Nabila Qureshi
With flu season in full swing, many employees can expect to miss work due to illness. Do the Ontario Human Rights Code (the “Code”) provisions prohibiting discrimination on the ground of disability provide any protection to an employee with the flu? What if the employee has bronchitis, strep throat, measles, or pneumonia?
The short answer is that common, short term ailments like the flu will not be considered a disability under the Code.
“Disability” is defined in the Code, but “common ailment” and how it differs from a disability is not. However, the jurisprudence has provided some guidance, stating that while human rights legislation must be interpreted broadly, not every medical condition will constitute a disability within the meaning of the Code. As noted by the Supreme Court of Canada, temporary illnesses that are commonly experienced by many people, and that have no impact on the individual’s ability to participate fully in society, are not considered to be disabilities (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), 2000 SCC 27). The argument is that considering them disabilities would trivialize the Code’s protections.
The Human Rights Tribunal of Ontario has commented that the mere fact that the ailment in question requires medication, or that the ailment could potentially become serious in some cases, will not automatically lead to a finding that the ailment is a disability under the Code (Burgess v College of Massage Therapists of Ontario, 2013 HRTO 1960). This does leave open the possibility that where a common ailment transforms into something more serious and less common or temporary, it may be considered a disability.
However, an illness need not be permanent in order to be considered a disability. It is the combination of an illness being transitory, common and not a true barrier to participation in society that will generally lead to a finding of a “common ailment” rather than a disability.
The Tribunal has found that the following “common ailments” are not disabilities within the meaning of the Code:
-Flu (Burgess v College of Massage Therapists of Ontario, 2013 HRTO 1960)
-Bronchitis (Anderson v Envirotech Office Systems, 2009 HRTO 1199)
-Strep throat (Burgess v College of Massage Therapists of Ontario, 2013 HRTO 1960)
-Pneumonia (Reaume v Total Security Management and Securitas Canada Limited, 2015 HRTO 504)
-Gastroenteritis and sinusitis (Valmassoi v Canadian Electrocoating Inc., 2014 HRTO 701)
-Head lice (CM v York Region District School Board, 2010 HRTO 1494)
-Eye infection (Davidson v. Brampton (City), 2014 HRTO 689)