Schools reopen in September but life has not returned to normal. Many parents and caregivers (and school staff) have concerns about the safety of their children, family members and themselves. Before and aftercare remain a challenge given that there are fewer placements available, and there are safety concerns about children mixing with others who are not part of their school cohort. In addition, many parents have to manage online learning for children who are not returning to the physical classroom. There are many reasons why parents may need workplace accommodation.
Protections for parents and caregivers under the Human Rights Code
The ground of “family status” in the Ontario Human Rights Code protects parents against discrimination in employment (as well as in other contexts, like housing). Family status protection also includes non-biological parents and those who are in a parent-like role. For simplicity’s sake, I will refer to all these people as “parents”.
An employer has a legal duty to accommodate parents, up to the point of undue hardship where a parent’s legal responsibilities towards their children conflict with work. This means that employers may have to make adjustments to allow parents to keep working while balancing their childcare responsibilities, unless it would be unduly costly or unsafe for the employer to do so.
Accommodation can take a number of forms in the new back-to-school context. It could involve adjusting shift schedules, allowing parents to work from home, or permitting parents to take a paid (if available) or unpaid leave on days when their children are not attending school and are instead completing online or at-home learning. It could also involve adjustments to work hours to accommodate parents who cannot get their children into before or after care. In some circumstances, it may mean allowing the parent to take a leave of absence, although accommodations that would allow parents to remain at work should be explored first, unless both the employee and the employer prefer the leave option.
Before seeking accommodation from an employer, you may be required to explore any other possible arrangements for childcare during work hours, even if it means paying money for a babysitter or other caregiver. You might be able trade off childcare responsibilities with another adult in your household. If you have an older child who can responsibly babysit, or you have expanded your social circle to include neighbours or grandparents, that could also be an option.
Once an accommodation is in place, it can be adjusted. What is reasonable now may no longer be reasonable as circumstances evolve or the employee’s needs change. Likewise, as there are new options available to parents, employers may seek to revise the accommodations that have been in place. Employers cannot, however, just outright cancel an accommodation that has been in place because children are back in school – they must look at the employee’s unique circumstances and determine whether accommodation is still required. At the same time, employees are not necessarily entitled to their ideal solution – they must be flexible and be prepared to accept reasonable arrangements that meet their needs.
Am I entitled to accommodation if I am keeping my kids out of school or day care because my child or a member of my household has a health condition that makes them vulnerable to COVID-19?
The Ontario government has made in-person learning voluntary for both elementary and secondary students. Some parents may decide not to send their child back to school because they are concerned about the health of their child or about a family member who lives with them. This may mean that a parent needs to stay home in order to look after the child or oversee at-home-learning.
If the child is not in school because the child or a member of the household has a medical condition that makes them more vulnerable to a severe case of COVID-19, then this would likely be a sufficient reason to justify why a parent requires workplace accommodation. The medical need should be documented and based on a medical professional’s recommendation.
Am I entitled to accommodation if I have decided not to send my child to day care or school because I am worried about my child being exposed to COVID-19?
Some parents are understandably worried about the risk of their child contracting COVID-19 at school or day care, even if the child and everyone at home is healthy.
However, as public health officials have given schools and day cares the green light to re-open, it is unlikely that parent’s fears about COVID-19 would be enough to justify a request for accommodation, unless the child has an underlying health condition or lives with someone who does.
Parents should talk to their child’s doctor about their concerns and base their decisions on medical advice instead of what they read in the media. Regardless of whether, strictly speaking, employers are required to accommodate, they may be willing to do so in order to maintain good employee relations. Employers and employees should be encouraged to work out reasonable solutions.
Can I remain on a Designated Infectious Disease Emergency Leave (i.e. a “COVID leave” or “Emergency Leave”) once schools reopen?
Possibly. This unpaid leave is available for people who need to provide care or assistance to children and certain other family members for reasons related to COVID-19. Those reasons explicitly include the closure of schools and daycares, but the language of the legislation is broad enough to include other reasons. Therefore, it is possible that parents could access this leave if they chose to home school as a result of COVID-19.
It would also be available to parents who cannot work if schools and daycares close again as a result of any outbreaks this fall.