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With schools set to re-open in Ontario, many parents are considering what impact return to school plans will have on their ability to return to the workplace.  

Since parents are currently making important decisions about whether their children will physically return to school this fall, it is a good time to consider how to manage circumstances when an employee’s childcare responsibilities impact their ability to return to the office. This is important because many employees ‎may find it difficult to return to their pre-pandemic work arrangement and will need to seek accommodation in ‎relation to their childcare responsibilities. ‎

This issue is also an important reminder that COVID-19 continues to have an immediate and important impact on employees and their rights at work, including in relation to hiring, termination of employment, and rights at work including human rights

Human Rights Considerations

Provinces across Canada provide a range of legal protections to parents caring for their children. This includes human rights protection intended to support parents as they balance work and family obligations. In Ontario, for example, employers are prohibited from ‎discriminating or harassing employees based on “family status”. Family status includes parents caring for children and is more generally defined ‎as the status of “being in a parent and child relationship”.

If an employee is having difficulty returning to their “pre-pandemic” work arrangement because of their ‎childcare responsibilities, then, pursuant to human rights legislation, their employer may have a legal obligation to provide “reasonable” accommodation, meaning to re-arrange work to ensure that the employee can support their children while carrying out their employment responsibilities.   

What is “Reasonable Accommodation”?

What is considered “reasonable accommodation” is determined on a case-by-case basis, but could include actions such as:‎

  • Allowing the employee to work from home;
  • Offering flexible working hours;
  • Altering employee duties; and/or
  • Providing a job-protected leave of absence

Facilitating an accommodation is a “two-way street”, meaning that the accommodation process is expected to be cooperative where the employer and employee work together to come to a mutually favourable arrangement.

All parties are expected to act reasonably in the process of determining the most appropriate accommodation. This means that the employer is expected to consider options unique to the circumstances of each employee. The employee is not entitled to an accommodation that matches their exclusive preference, but rather one that works to the mutual benefit of the employer and employee. 

What About a Leave of Absence?

Employees may also be entitled to unpaid job-protected leaves. For example, in Ontario, there are specific leaves to protect employees who are required to provide care to a family member for reasons related to ‎COVID-19 (i.e. school closure, illness etc.). ‎

Employees working for a provincially-regulated employer may specifically be eligible for infectious disease ‎emergency leave under the Ontario Employment Standards Act, 2000. This is an unpaid job-protected leave of absence provided to an employee caring for a prescribed family ‎member for reasons related to COVID-19.

If you have questions about refusing unsafe work, or if you have been punished, fired, or otherwise discriminated in attempting to assert your rights, contact Toronto employment and severance lawyersSultan Lawyers at 416-214-5111 or here.