With the closure of schools and daycares as a result of COVID-19, parents and other caregivers are struggling to balance their childcare responsibilities with their jobs. The Ontario government has recently announced an unpaid emergency leave that parents and other caregivers can take. While this may help some, many parents cannot afford to take time off work. Can human rights legislation, and in particular the prohibited ground of discrimination known as “family status”, help them during this time?
Yes, it can. 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.
In the employment context, an employer has a legal duty to accommodate parents, up to the point of undue hardship. This means that employers may have to make adjustments to allow parents/caregivers to keep working while balancing their childcare responsibilities, unless it would be unduly costly or unsafe to do so. Attempts should be made to explore the possibility of accommodation first, with an unpaid leave being the last option (unless the parent would prefer to take a leave).
Before seeking accommodation from an employer, parents/caregivers should 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, that could also be an option.
The difficulty during this pandemic is that the options that are normally available for childcare can present risks to the health and safety of your family or of those caregivers. Children have a hard time engaging in physical distancing. Good luck telling them to stay 2 metres away from grandma or their favourite babysitter.
If families have decided that they won’t visit grandma and grandpa during the pandemic due to concerns about protecting their health, then it would not be reasonable to rely on them as caregivers. Likewise, it may not be reasonable to bring a babysitter or neighbour into the home for the purposes of childcare or to send the children to someone else’s house if the family is otherwise distancing from those people. In fact, if this would result in a gathering of 5 people or more, it could be illegal.
Once a parent has established a need for accommodation, options for accommodation will depend on the circumstances of each family and employer, and could include:
- Working from home;
- Working a modified schedule (so that the parent only works during hours where there is another caregiver available);
- Accessing available day care;
- Taking a paid leave (if it is available).
Employees who work from home may need additional accommodation if they are the sole or primary caregiver during working hours. These accommodations could include:
- The ability to take irregular breaks or to work irregular hours so that they can look after children during working hours;
- Working reduced hours;
- Tolerance of occasional disruptions from children during meetings/conference calls;
- Modifying job duties to allow the employee to work in a position where the disruptions are not problematic.
These suggested accommodations are not comprehensive and there could be others that work for the employee and the employer. Employers are not permitted to insist on a “one-size-fits-all” approach. They must consider the unique needs of each employee. 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.
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. The accommodation process requires dialogue, flexibility and compassion.