Measles outbreaks raise issue of accommodation similar to COVID-19
Starting in March 2020, COVID-19 reshaped workplace norms, making working from home and quarantining when there is potential or actual exposure to communicable diseases or viral infections standard or mandatory practice. Further, the increased risk of disease exposure for vulnerable individuals and/or their family members prompted employers to engage in accommodation processes.
Measles was eliminated in Canada in 1998. However, due to spread primarily amongst unvaccinated individuals – according to reports from CBC News – the Canadian government reported that in 2025 alone, there were 3,170 reported cases of measles as of June 16. In comparison, from 1998 to 2024, there were 2,445 cases in total.
In light of this explosion of measles cases, employers may soon encounter accommodation requests from immunocompromised employees on this basis.
Do employers need to accommodate these pre-emptive requests from immunocompromised employees? According to a recent British Columbia Human Rights Tribunal decision, Flynn v. DF Architecture Inc., 2025 BCHRT 81, the answer is yes.
This BC Human Rights Tribunal decision found for the first time in Canada that the failure to allow alternate work arrangements for an immunocompromised employee constituted discrimination on the protected ground of disability. Specifically, the tribunal found:
The complainant (Flynn) had a disability because his medication made him immunocompromised.
He faced an adverse effect based on this disability, amounting to discrimination, when his new employer imposed mandatory in-person work at the start of COVID-19 in late March 2020 – which ultimately led Flynn to resign.
The employer did not fulfil its duty to accommodate Flynn’s disability.
Due to the finding of discrimination, the tribunal awarded the complainant the following damages:
Two years of lost wages, amounting to $183,802.59.
Compensation for injury to dignity, feelings, and self-respect, amounting to $25,000.
Flynn was hired as an architect at the respondent employer on March 13, 2020, with a start date of March 30. After a provincial state of emergency was declared on March 18 because of COVID-19, the office reduced staff on-site to enable social distancing. On March 26, Flynn informed the manager he was immunocompromised and inquired about remote work but was told he had to attend in person. He reiterated his health concerns in a March 27 email to both the owner and the manager noting that he felt “extra vulnerable,” but he received no reply.
Flynn reported to the office on March 30 but left early because his colleagues were not following social distancing protocol. On April 2, a new schedule required him in-office three days a week. Flynn again raised health concerns and requested alternatives to the owner, but was told his presence was necessary. Interpreting this as a refusal to accommodate, Flynn resigned 30 minutes later.
The tribunal divided its analysis into two parts: whether Flynn had a disability, and whether the employer fulfilled its duty to accommodate him.
The jurisprudence across Canada has employed a broad definition for disability as entailing a “physiological state that is involuntary, has some degree of permanence, and impairs the person's ability, in some measure, to carry out the normal functions of life.” There is no specific length or permanence needed and the focus is on “protection against discrimination” for those suffering from “actual limitations in the performance of everyday activities,” according to the Supreme Court of Canada in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27.
The Supreme Court’s test from Moore v. British Columbia (Education), 2012 SCC 61, was applied to determine whether Flynn had experienced discrimination based on his disability:
He had a physical disability.
He experienced an adverse impact regarding his employment with the respondent.
His physical disability was a factor in the adverse impact he experienced.
Only the first element was in question, and the tribunal considered the following to find that the complainant had a disability:
Involuntary physical state: at the time of resignation, Flynn was required to take medication for arthritis, which suppressed his immune system - thus, an involuntary physiological state. Flynn’s doctor explained that the medication came with a warning that users are “at increased risk for developing serious infections that may lead to hospitalization or death (reported infections include active tuberculosis, invasive fungal infections, bacterial, viral and other infections caused by opportunistic pathogens…).”
Some degree of permanence: Flynn’s doctor said his need for the medication was potentially lifelong.
Impair participation in everyday activities: immunocompromised status made Flynn more susceptible to viral infections like COVID-19, such that “everyday activities, such as going into the office to work, therefore create additional risks for him that persons with a fully functioning immune system… do not have to worry about.”
Although Flynn didn’t disclose his exact condition, he raised immunodeficiency concerns three times to the employer. The tribunal found this was enough to trigger the employer’s duty to initiate accommodation. Instead, the employer failed to do so by either insisting Flynn attend in person or not responding to his concerns.
Takeaways for employers:
Where an employee can medically support their position that they are immunocompromised, employers are required to engage in the accommodation process.
Employers may canvass what forms of accommodation are available, including remote work, working at a separate location from the outbreak, being placed in an alternate position temporarily during an outbreak, and a sick leave.
Accommodation requires collaboration between employees and management. Accommodation need not be perfect, but if a proposal that would be reasonable in all the circumstances is rejected, the employer’s duty is discharged: see Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81.
Emile Shen is an employment lawyer at Turnpenney Milne in Toronto.
