Duty to Accommodate

Diversity and inclusion, Duty to Accommodate, Employer Policies, Human Rights, Labour Law

Gender Diverse Workers and Work Travel Requirements to the US – Is There a Right to Refuse Travel?

*this blog was written based on information currently available as of February 11, 2025*

In the wake of Donald Trump’s Executive Order on gender, the US secretary of state has ceased issuing passports with a gender-neutral X option. Travel to and from the US with an X identifier hangs in the balance as the state department has not yet commented on whether the gender order will impact travellers with an X identifier.

With approximately 3600 Canadians holding a passport with an X identifier, employment requirements for travel to the United States will no doubt become an issue for employers and employees alike. Not only may crossing the border for work become more difficult for gender diverse folks who don’t have an M or F on their passport, but the United States is becoming increasingly unsafe for those don’t identify with their gender assigned at birth.

Right to Refuse Unsafe Work per WorkSafe BC

In British Columbia, employees have a right and responsibility to refuse work that they reasonably believe to be unsafe. Work can be unsafe when it creates “an undue hazard to the health and safety of any person”. A “hazard” is a “thing or condition that may expose a person to a risk of injury or occupational disease”, including a mental health injury as defined by the Workers Compensation Act. An “undue hazard” is a hazard that is inappropriate, excessive, or disproportionate.

When workers refuse work that they think is unsafe, employers have a duty to follow occupational health and safety laws, including:

Immediately investigating the potentially unsafe work;
If the employer is not convinced that the work is unsafe but the worker continues to feel it is unsafe, assign another worker to do the work;
If the first worker continues to feel the work is unsafe, investigate the work again and allow the worker to be accompanied by a worker representative or another worker of their choice; or
If the parties cannot agree whether the work is safe, refer the matter to WorkSafeBC for further investigation.

An employer must also refrain from retaliation against an employee for raising a safety issue or refusing to do work they feel is unsafe.

Whether travel to the US creates an undue hazard under occupational health and safety laws will be determined based on what a “reasonable person” would believe taking into account relevant and available information. A “reasonable person” is a legal concept that refers to an imagined “average” or “ordinary” person standing in the shoes of the observer and tries to predict how that imagined person would behave in a given scenario. Whether a worker could reasonably believe that travel to the US would pose an undue hazard to their health and safety would likely depend on what a “average” queer or gender diverse worker would believe may expose them to an excessive or disproportionate risk of injury or occupational disease.

This means a gender diverse person may have a right to refuse travel to the United States as part of their work because it is uniquely unsafe for them, even though travel to the United States may be safe for others.

Duty to Accommodate under the Human Rights Code

2SLGBTQIA+ employees, and in particular gender diverse employees, may also be able to refuse to travel to the US based on the BC Human Rights Code’s protection against discrimination regarding employment. If the employee can demonstrate that travelling to the US for work could expose them to a negative impact, and that their sexuality, gender identity, and/or gender expression is factor leading to that negative impact, they may be entitled to a human rights accommodation. Such accommodations could include having the part of their job that requires them to travel to the US removed from their duties or being temporarily transferred to another position that does not require travel to the States, among many other things.

This can be challenging for employers with employees whose job duties specifically require travel to the United States. While in theory, a non-unionized employer may terminate an employee on a without cause basis for being unable to travel to the US, so long as they properly compensate the employee for the without cause termination, such terminations could be discriminatory based on sexuality or gender identity or expression and could result in significant liability for the employer. Such terminations may also be a prohibitive action under the Workers Compensation Act, which prohibits terminations and other negative consequences for employees who raise a safety concern and/or refuse unsafe work.

For these reasons, employers dealing with employees who refuse, for workplace safety or discrimination reasons, to travel to the US for work should be very cautious about terminating or otherwise imposing negative employment consequences on these employees.

As of writing, the Canadian Government has not issued a travel advisory for the United States, despite pressure from 2SLGBTQIA+ advocates to do so. Factors like travel advisories may be important to a worker’s ability to prove travel to the United States is unsafe work.

Much remains unclear as the situation evolves south of the border as of the date of writing on February 11, 2025. What we do know is that Canadian laws continue to apply to Canadian employers and employees and staying informed about rights and obligations is key.

This blog is not legal advice and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us [email protected] or 604-535-7063. Our team of employment lawyers in BC and Alberta are ready to answer your questions.

Covid-19, Duty to Accommodate, Employer Policies, Employment Law, Human Rights, Privacy

Mandatory Vaccines for Regulated Health Care Practitioners

Updated: March 21, 2022

The BC Government has revised its plan to mandate vaccines for all regulated health care professionals. On March 10, 2022, the BC Public Health Officer announced that they will be moving forward with an “informed consent” system for some health care workers which may require disclosure of vaccination status to patients or clients. The new Order was issued on March 7, 2022 and requires regulated colleges to record each registrant’s vaccination status by March 31, 2022. Vaccination will still be required for health care workers practicing in certain settings.

The landscape of employment law continues to change as BC brings in new measures to manage the ongoing COVID-19 pandemic. This time, the change affects employees and employers working in regulated health care professions.

On February 9, 2022, the BC Public Health Officer expanded its vaccine mandate to include health care workers like dentists, chiropractors and other practitioners who are governed by a regulatory college. According to the new announcement, workers who get a first dose of the vaccine by March 24, 2022, and a second dose between 28 and 35 days after, may continue to work.

The BC Provincial Health Officer is finalizing the order in consultation with the health professional colleges and further details will be provided about how the vaccine mandate will be rolled out. As we’ve seen with other government mandates, workers who fail to get vaccinated by the imposed deadline may be terminated or placed on unpaid leave.

We have worked with many dentists and other regulated health care professionals to navigate the twists and turns of the COVID-19 pandemic, and this will be another challenge for employers to tackle. That is because government vaccine mandates do not eliminate all risk associated with terminating a worker who refuses a vaccine. There are a number of aspects to mandatory vaccines that must be handled carefully, including medical exemptions and the privacy of workers’ personal information. We may see health professional colleges taking a lead role in collecting information about vaccination status and investigating instances of non-compliance, however this does not replace an employer’s legal obligations. Here are the top three things that those working in a regulated health care profession should know:

1. The employer has a duty to accommodate in some circumstances.

In rolling out vaccine mandates, even if they are government ordered, employers still need to consider their responsibilities to workers under the Human Rights Code. Employers have a duty to accommodate workers who can demonstrate that they are unable to be vaccinated for reasons protected by the Human Rights Code (for example, disability or religion) to the point of undue hardship. In deciding whether it is undue hardship to continue employment of an unvaccinated worker, employers must consider the personal circumstances of the worker, and take into account the safety of the workplace and the requirements of both the government and their regulatory body.

2. An employee’s vaccine status is sensitive health information.

As healthcare practitioners know, personal health information must be handled with care. This includes vaccine status. The Personal Information Protection Act allows private sector organizations to collect, use, and disclose an employee’s personal information for limited purposes, if appropriate safeguards are in place. This means that employers must have a designated process for protecting the privacy of information about vaccine status which also complies with the requirements of their respective regulatory colleges. These privacy obligations extend to prospective employees who are applying for a job and are asked to disclose their vaccination status.

3. Mandatory vaccine policies should be drafted carefully.

Employers in a government-mandated industry should have a written vaccine policy that complies with all BC public health orders and is applied consistently. This policy should address what will happen when a worker has a qualifying exemption and is unable to be vaccinated. There should also be a clear process for how to collect, use and protect each employee’s private information.

A full list of health care professions affected by the order can be found here.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Duty to Accommodate, Wrongful Dismissal

Sick and fired? The duty to accommodate explained.

At Forte Law, one of the most common work problems that brings clients to see us is disability in the workplace. We meet with employer clients who are struggling with how to manage employee medical issues that are impacting the workplace. We also meet with employee clients who have been fired from their jobs after getting sick. Sometimes an employee has been fired during, or following a medical leave or when they request changes to their duties or schedule to accommodate medical limitations. Every week, we work with several clients who are facing this stressful situation.

The good news is that the law is clear. Employers in British Columbia have a duty to accommodate employees’ physical or mental disabilities. This means that if an employee has a disabling condition, the employer must consider what can be done to maintain the employment relationship before firing them. In most employment relationships, the duty to accommodate could include allowing employees to take leaves from work for treatment and recovery, or considering modifications to duties or work schedules.

There are limits to what lengths employers must go to in accommodation. If an employer can demonstrate that the changes required would be undue hardship for its business, for reasons that can include financial costs, or other business impacts then it has reached the end of the duty to accommodate. Employers are not required to hold positions open forever when an employee is on leave, but decisions to terminate must be based on a careful assessment.

The duty to accommodate is a two way street. Employees are also required to participate in the accommodation process. Employees must provide medical information, maintain contact while away from the workplace, and be open and flexible about ideas on how their medical limitations could be accommodated at work.

The bottom line is, if you have been fired or “laid off” in any part because of a medical leave or limitations on your ability to work, you should seek advice from an employment lawyer. This is a stressful time, and we can help you find a path forward. We will make sure you understand your rights, and in most cases we are able to help our clients negotiate a settlement that lets them move on with their lives.

Similarly, if you are an employer, and thinking about letting someone go while they are on a medical leave, you should definitely seek guidance from an employment lawyer. We can ensure that you understand your obligations and risks, so that you can move forward in a manner consistent with the Human Rights Code.