Is the Flu A Disability Under The Human Rights Code?

Malcolm-MacKillop-Flu (1)
As we are in the midst of flu season, the question may arise as to whether the flu and other similar ailments are considered “disabilities” under the Ontario Human Rights Code (the “Code”). While employers have a duty to accommodate employees with disabilities under the Code, in Burgess v. College of Massage Therapists of Ontario, 2013 HRTO 1960 (“Burgess“), the Ontario Human Rights Tribunal (the “Tribunal”) clarified that common ailments, such as the flu, are not disabilities that trigger an employer’s duty to accommodate under the Code.

In Burgess, the applicant was a registered massage therapist (“RMT”) subject to the regulation and oversight of the respondent, the College of Massage Therapists of Ontario (the “College”). The College is responsible for administering testing for candidates seeking to become licensed RMTs and employs a number of experienced RMTs to act as examiners. These examiners are hired through annual contracts and have mandatory two days of annual training each year before administering the tests.

The applicant, who worked as an examiner for seven years, wasn’t able to participate in the mandatory training due to an illness of the flu and strep throat; as a result, the College canceled her annual contract to act as an examiner. The applicant then brought a complaint against the College under the Code, claiming that she had been discriminated against as a result of her illness, which she alleged was a disability.

The College argued that the mandatory training was a reasonable occupational requirement for examiners, and to accommodate the applicant by conducting individual training at another time would amount to undue hardship. The Tribunal disagreed and held that if the applicant was disabled, the College would have a duty to accommodate her by training her individually, despite the added costs that would be incurred by the College.

The College additionally argued that the applicant’s flu and strep throat did not qualify as a disability under the Code. The Tribunal agreed and cited the decision in Ouimette v. Lilly Cups Ltd., (1990) 12 CHRR D/19 (“Ouimette”) for the principle that that commonplace, transitory illnesses such as the flu are not disabilities under the Code. The Tribunal also referred to a 2009 Tribunal decision which held that bronchitis was not a disability under the Code because it was a common illness and did not limit an individual’s ability to fully participate in society.

Burgess clarifies that commonplace and transitory illnesses such as a cold, the flu or bronchitis do not constitute disabilities under the Code and employers are therefore not required to accommodate employees with such sicknesses. While the Tribunal left open the possibility that an extreme case of strep throat might rise to the level of a disability, in general employers have no duty to accommodate commonplace, transitory illnesses such as a cold or the flu under the Code. That being said, while the flu may not give rise to Code obligations, employers managing employee absences caused by commonplace illnesses should keep in mind that employees may be entitled to job-protected leaves under applicable employment standards legislation.

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