Temporary symptoms can qualify as disability requiring accommodation, protection
Since COVID-19, the British Columbia Human Rights Tribunal has experienced a surge in the number of complaints filed, including those alleging discrimination based on a disability. But what exactly is a disability when it comes to the tribunal? In a recent decision, the tribunal provided helpful insight into this question.
First, however, it is important to understand the framework for making a successful discrimination complaint pursuant to the BC Human Rights Code. A complainant must demonstrate three factors:
They are a member of a protected group (this would include having a mental or physical disability).
They experienced adverse treatment.
There was a connection between the adverse treatment and being a member of a protected group.
In Anderson v. Spectrum Society for Community Living, 2025 BCHRT 80, the tribunal grappled with the question of whether the employee suffered from a disability as a result of an illness. This is an important question because the code does not define ‘disability.’ Rather, the tribunal interprets the term liberally to achieve the purposes of the code, which include the removal of barriers that people face in certain areas of daily life because of their disabilities. Those barriers may arise from actual functional limitations associated with a disability, or society’s perception of, or response to, the disability.
While the tribunal permits a liberal interpretation of ‘disability,’ it is not intended to capture every scenario. For example, a flu or cold will likely not qualify as a disability. However, symptoms associated with a flu or cold, in addition to other symptoms and over a prolonged period of time, may form a disability. This was the situation in Anderson.
Mr. Anderson was employed with Spectrum on and off from approximately June 2003 to September 2020. In February 2020, Anderson took an approved vacation leave to travel with his family to the Philippines. While there, he became ill with fever, vomiting, and diarrhea, and had to take medication to control his symptoms. When he returned home, concerns about COVID-19 had become widespread, and Spectrum had introduced a mandatory 14-day quarantine period for employees returning from overseas. Thereafter, Anderson experienced a range of symptoms that kept him away from work from March to August 2020:
On March 25, Anderson emailed Spectrum to advise that he had symptoms of cough, sore throat, and sneezing, which were possible symptoms of COVID-19.
On April 4, Anderson emailed Spectrum regarding his continued sinus and coughing issues. On April 10, he informed Spectrum that he was taking antibiotics to clear up the sinus infection. On April 20, he met with his doctor and reported he had reflux issues which he thought could be causing throat issues. On April 27, Anderson informed Spectrum that he was experiencing stomach issues and his doctor had advised him to stay off work until his issues were resolved.
On May 1, Anderson emailed Spectrum that his doctor had advised him to stay home for another week. A medical note dated May 14 indicates Anderson had a visit with his doctor that day, he complained about ongoing stomach issues, and the doctor ordered tests. On May 27, Anderson had another visit with his doctor. A medical note from that day indicates he was still experiencing stomach issues and his doctor had prescribed him another medication to assist.
On June 5, Anderson reported his stomach issues were almost resolved, but that he now had a sore throat and congestion. On June 8, he was prescribed a medication to assist with acid reflux and sore throat. Two days later, he was advised that his sinus x-ray showed inflammation and he was prescribed prednisone for seven days as a result. On June 23, Anderson was experiencing ongoing sinus and eye issues, and the doctor ordered more tests. On June 30, Anderson had another visit with his doctor and complained of “ongoing fatigue” and the doctor ordered blood tests.
On July 7, a medical note indicates that Anderson had been diagnosed with a bacterial infection of the stomach and was given antibiotics for 14 days. On July 28, he told his doctor he was having ongoing stomach issues and the doctor advised him to wait for a period of time and to check in again.
Given the above information, the tribunal was required to determine whether Anderson’s health issues were a disability by considering the degree of impairment, any functional limitations, and the social, legislative, or other response to that impairment and/or limitations. The analysis considered factors like whether the condition entailed a certain measure of severity, permanence and persistence.
The tribunal has held that it is not necessary that a medical condition be permanent in order to amount to a disability for the purposes of the code. However, simply because a person is on a medical leave from work due to a medical condition does not mean the condition will automatically amount to a disability for the purposes of the code; employees may be absent from work for a variety of temporary illnesses that do not necessarily constitute disabilities.
Therefore, “disability” does not capture every medical problem – it does not include conditions that are temporary and treatable, like a cold or flu. These types of conditions are excluded because there is not normally a negative bias against these kinds of characteristics or ailments, which is a reference to the purpose of the code. The focus of the analysis of whether a condition amounts to a disability is on obstacles to full participation in society rather than on the condition or state of the individual, ailments (a cold, for example), or personal characteristics. Therefore, because a “normal ailment,” such as a cold or flu, does not amount to a disability for the purposes of the code, even if an employer fires an employee for taking time off to recover from a cold or flu, the termination will typically not engage the protection of the code.
The above principles were important in Anderson, because the tribunal found that the evidence demonstrated that while Anderson was off, he experienced a variety of symptoms, which may or may not have been connected, many of which were mild symptoms typical of a cold or flu.
Ultimately, the tribunal found that Anderson’s variety of symptoms over approximately five months from March to August 2020 amounted to a disability for the purposes of the code, despite the symptoms being temporary and for the most part relatively mild. The tribunal found that Anderson ended up being off work for a significant period of time, his treating medical professionals did not medically clear him to return to work for approximately five months, and that Spectrum perceived him to be medically unable to work for this period of time.
Anderson’s illnesses ended up being more than just mild and transitory and were distinguishable from common cold, flu or gastro symptoms, which typically do not engage the protection of the code, and he was regularly accessing medical care to try to identify and treat his symptoms. Initially, Anderson was experiencing symptoms commonly associated with cold, flu, and/or COVID-19 - such as sore throat, fever, coughing, and sneezing. However, as time passed, he developed different symptoms that related to his stomach and digestive system. Near the end of his leave, other symptoms such as fatigue, sleep issues, sinus issues, and eye issues emerged. Ultimately it was a stomach bacteria that was diagnosed.
The tribunal has consistently applied the above principles when determining whether an individual has a disability for the purposes of the code. The analysis can be complex and involve issues of evidence and expert evidence. It is advisable to seek legal counsel to understand how the tribunal assesses these types of cases and whether an employer has a valid defence.
Trevor Thomas is a partner and co-founder of Ascent Employment Law in Vancouver.
