Human Rights Tribunal Affirms Immunocompromised Worker’s Right to Seek Workplace Accommodations

A human rights tribunal has found that an employer’s failure to provide accommodation for an immunocompromised worker amounted to discrimination on the basis of disability.

The April decision by the BC Human Rights Tribunal affirmed that immunodeficiency is a physical disability, and that in raising concerns about his immunodeficiency multiple times, the worker who brought the case forward had given his employer enough information to trigger the employer’s responsibility to look into ways to accommodate that disability.

Gabrielle Peters, a disabled writer and policy analyst based in Vancouver, praised the decision as broadening the discussion of what it means to create an accessible workplace.

“It validates that immunocompromised people have actual accessibility needs, that they are disabled and that if those needs are not respected, you are discriminating against them,” Peters told PressProgress.

Writing in an industry publication for human-resources professionals, employment lawyer Emile Shen described the decision as the first of its kind in Canada.

The case was brought forward by David Flynn, an architect who was hired by a firm called DF Architecture on March 16, 2020. Two days after Flynn signed the offer of employment, British Columbia declared a provincial state of emergency because of the COVID-19 pandemic.

Flynn has arthritis, a chronic and lifelong autoimmune disorder that requires immune-suppressing medication. This means he is at a higher risk of serious complications, including hospitalization and even death, from viruses and infections that people with fully functioning immune systems could fight off.

On three separate occasions, Flynn told his employer he was immunocompromised and was open to discussing alternative work arrangements. Management at DF Architecture insisted he work in person multiple days per week, during which workers were supposed to be social distancing, washing their hands and sanitizing their workstations.

The owner of DF Architecture testified he understood architecture firms to be included in the government’s list of essential services that could continue in-person work during the state of emergency.

Flynn worked in person twice, but left early both times because his coworkers weren’t following social-distancing rules.

According to the decision, his employer did not respond to an email in which Flynn explicitly stated he was immunocompromised and “feeling extra vulnerable,” nor did they respond to his resignation email the following week.

“These communications indicate that Mr. Flynn not only told DFA about his disability, but also that he wanted to engage in a dialogue with his new employers,” tribunal member Robin Dean wrote in her ruling. “DFA’s response was to insist that Mr. Flynn come in, ignoring his concerns, and failing to engage in this process at all.”

Dean acknowledged both Flynn and his employer had responsibilities in the accommodation process: workers like Flynn are supposed to provide relevant information about their disability, which could include “information about the employee’s medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work.” Once an employer knows or ought to have known that an employee is experiencing disability-related barriers, they are required to take all necessary steps to address those barriers and look for solutions.

The tribunal awarded Flynn two years of lost wages, amounting to $183,802.59 plus interest, as well as $25,000 for injury to Flynn’s dignity, feelings and self-respect.

DF Architecture has since applied for a judicial review of the decision based on what they describe as “a number of critical errors made by the Tribunal.” The architecture firm did not respond to a request for comment from PressProgress.

Flynn declined to comment while the matter is before the courts.

The duty to accommodate

David Lepofsky, a disability-rights advocate and retired lawyer now serving as a visiting professor at Western University, told PressProgress that the basic facts of this case — that Flynn has a disability and he made clear requests for accommodation, triggering the employer’s duty to accommodate — are clear.

“In law school, we talk about black-letter law. That’s a case where the rule is really simple and obvious, and there’s no two sides to the debate,” said Lepofsky. “This is an obvious one under black-letter law.”

Lepofsky said that part of an employer’s duty to accommodate is a responsibility to investigate alternatives, an idea he advanced in a 1992 journal article which then was unanimously adopted by the Supreme Court of Canada in 1999.

“This has been the law for decades, and the fact that someone in what I would characterize as a legally obvious case had to go through these steps is illustrative of the hardships that too many people with disabilities still face,” said Lepofsky.

Whitney Ayoub Goulstone, executive director of ImmUnity Canada, praised the decision’s acknowledgment of Flynn’s immunocompromised status as a disability that requires accommodation.

ImmUnity Canada represents patients with primary immune deficiency, which includes over 450 different genetic disorders. Primary immune deficiencies are different from secondary immune deficiencies, like HIV, and autoimmune disorders. Ayoub Goulstone told PressProgress it’s estimated over 1 million people in Canada are immunocompromised, with around 10,000 having primary immune deficiency.

“We need to make accommodations for people who have these ‘invisible disabilities’ and are immunocompromised,” said Ayoub Goulstone.

Laurie Proulx, a patient representative with the Canadian Arthritis Patient Alliance, said the decision legitimizes what the group has been hearing from its membership.

“So many people living with inflammatory types of arthritis are immunocompromised,” Proulx told PressProgress. “We’ve been experiencing a very different reality than the rest of the world with COVID, with the new outbreaks, because we’re at higher risk of becoming more severely ill, of ending up in hospital, and of increased deaths as well, unfortunately.”

According to survey data from Statistics Canada, 69% of workers with disabilities or long-term conditions experienced a barrier to accessibility in the workplace in 2024, with nearly half reporting that those barriers impacted their ability to perform their daily work to a moderate or great extent.

Difficulties in disclosing

Proulx and Ayoub Goulstone both told PressProgress that immunocompromised workers have approached their organizations with concerns about return-to-office mandates.

Ayoub Goulstone said the people she has heard from have been concerned not just about COVID but also the flu, and, more recently, measles.

But she also said sometimes workers’ fears about how their bosses will react to requests for accommodations outweigh those concerns.

“A lot don’t disclose their medical conditions to their employer because of fear of what the repercussions will be.”

Half of the respondents to the Statistics Canada survey reported difficulties disclosing their disability in the workplace.

Ayoub Goulstone said ImmUnity Canada has gotten involved in a few cases to help facilitate conversations around return-to-office policies between immunocompromised workers and management.

“For the most part, all employers that we’ve worked with have been very accommodating and understanding,” said Ayoub Goulstone. “But it does say something to us that we’ve had to get involved because the employees themselves don’t feel safe having that conversation, or have reached out initially and have had some negative feedback from their HR department or their direct manager.”

In Flynn’s case, his former employer told the tribunal that he ought to have provided specifics about his medical condition and the accommodation he was seeking. But the tribunal disagreed, stressing that because of the need to protect workers’ privacy, “employers are not entitled to all medical information about the employee, just the information that is required to formulate a reasonable accommodation.”

For Gabrielle Peters, the decision’s recognition that employers are not entitled to a worker’s full medical history is significant. She suspects Flynn’s experience is unfortunately common.

“You don’t have to know why the person’s immunocompromised,” said Peters. “You don’t get to sit there and decide whether you think this illness is real or serious or not serious.”

In his testimony, Flynn said he felt he was forced to choose between his health and his job, causing him extreme anxiety. He had difficulty finding subsequent employment in the field, ultimately retiring his professional registration as an architect.

“They really understood and acknowledged and validated that this really affected him,” said Peters. “That he lost sleep, that he experienced anxiety, that he lost confidence in himself.”

Accommodation can take many forms

While remote-work policies are one common accommodation for disabled and immunocompromised workers, advocates that PressProgress spoke to said accommodations can take many forms.

Ayoub Goulstone said improving ventilation, having workspaces regularly and thoroughly cleaned and generous sick leave policies that enable workers to stay home when they or a close contact are sick would all help reduce the spread of illness in the workplace. For workers with arthritis, Proulx said accommodations could look like delayed start times and regular breaks to manage fatigue and concentration. Workers with arthritis who do physical jobs can benefit from padded mats and chairs to lessen strain on joints.

She said perhaps the most transformative thing employers could do is to shift the way they approach the accommodation of disabled workers altogether.

“What I’d really like to see is employers just offering these options from the get-go to everybody, so that people don’t always have to ask to be treated differently,” said Proulx.

Peters agreed policies that allow disabled workers to take extended bathroom breaks, lay down or elevate certain body parts when needed can all be helpful. However, she stressed that because conventional workplaces were not designed for disabled people to participate, some people will never be able to participate in those workplaces under any circumstances.

“I think the decision challenges employers, politicians and the public to really start to grasp what disability is, and that accessibility needs are more than just ramps,” she said.

Peters is concerned, however, that because the decision examined an employer’s conduct in the “pre-vaccine” period of the COVID pandemic, that could limit its application outside of that context.

“It just highlights the importance of our governments being clear about the fact that airborne illnesses, like COVID, like measles, they’re still out there, and they still present a very real threat, especially to people who are immunocompromised.”

Lepofsky said that from a legal standpoint, the decision’s future relevance will depend on how it’s applied; in other cases, the nature of the request, the available accommodations and the person requesting those accommodations will all vary.

What stays the same is the fact that immunocompromised people are disabled, and employers have a duty to accommodate once they’ve received a request.

“If a person’s working in a workplace and says, ‘Hey, I’m immunocompromised, can I be situated in an office that’s more removed? Can we take some steps (towards that), or can I work remotely?’ That has not become an irrelevant claim somehow.”