I got COVID-19 last May and continue to suffer from long-hauler symptoms that are affecting my work. I have bad bouts of brain fog, and I get confused easily. I’m always exhausted and have to take frequent breaks. My job requires preparing a lot of written summaries and reports, but I’ve been mixing up my words and letting small typos slip through. My boss has noticed the change in my performance and I’m worried about getting fired or demoted to a position with less responsibility, and less pay. What are my rights here?
The First Answer
Busayo A. Faderin, senior associate, Monkhouse Law Employment Lawyers, Toronto
Unfortunately, your story is not unique. Many people are reporting long-lasting symptoms from COVID-19, which continue to affect their daily lives. It is yet to be seen what the long-term effects of contracting the virus will be.
If you haven’t already, you may want to have a discussion with your boss to let them know the difficulties you have been having are a result of recovering from COVID-19 (or you can say a medical condition, if you do not wish to disclose). You may also want to consider requesting an accommodation at work and think about what types of accommodations or supports would assist you with your work. Your request for accommodation should be taken in good faith by your employer. While your employer may request that you see a physician about your symptoms and provide information outlining your limitations to support your request for accommodation, they should be flexible in this regard and not overburden the health care system with requests for notes or cause you to risk unnecessary exposure in doing so.
If you were to be terminated or demoted because of medical-based performance issues, it may be considered discriminatory under human-rights legislation. Additionally, a demotion, without your agreement, could be considered a constructive dismissal. A constructive dismissal occurs when an employer makes a significant change to an employee’s job without their consent or breaches the terms of the employment agreement such that an employee resigns. In either circumstance, getting advice from an employment lawyer will provide you with information about the strength of your case and guidance on how to navigate it.
The Second Answer
Susanna Allevato Quail, partner, Allevato Quail & Roy, Vancouver
Any worker with a disability, which includes a long-term illness like yours, has a right to accommodation up to the point of undue hardship. In your case, that might mean that there are extra steps in place to catch these errors – for example, a bit more time for you to do a final review before submitting, or an extra set of eyes reviewing your work before it’s finalized.
If that isn’t possible in your workplace, it could mean demotion to a position where your symptoms won’t affect your work – but only if accommodating you in your current position would cause undue hardship. The test for undue hardship is highly fact-specific, and the threshold is usually quite high. If an employer says that the accommodation is too expensive, they have to prove that the cost is so substantial that it would threaten the viability of the business.
Note that you have to provide sufficient medical information for your employer to understand that your request for accommodation is legitimate and to understand your functional limitations so that they can provide appropriate accommodation. In most cases, you do not have to disclose your diagnosis.
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Published at Sun, 21 Feb 2021 10:00:00 +0000