On Friday June 12, 2020, Ontario allowed daycares to reopen to the public, under strict new conditions. Summer day camps will also be permitted to operate with stringent rules. In addition, the Ontario government is now suggesting that people can create “social circles” of up to 10 people who do not need to physically distance from each other.
So what do these changes mean for parents and caregivers? Can they maintain the accommodations that were put in place at work when the schools closed? Can they remain off work on a “designated infectious disease leave”?
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. 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.
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 daycares have opened – 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.
Is my employer required to accommodate me if I send my child to camp or daycare?
Yes. While daycares and camps are a partial solution to childcare needs, their operating hours may not line up with a parent’s work hours. Parents still need to do drop-off and pick-up, and may need to supervise children before or afterwards. This may mean that parents require changes to their work schedule, or flexibility around when or where work is performed.
As noted above, before seeking accommodation, parents/caregivers should explore what other options are available to meet their parental obligations. If someone else is available to do the pick-up, drop-off and/or before and after care, then accommodation may not be required. If these options are simply not available, you should document what attempts you have made to make other arrangements and be prepared to explain why these options are not feasible.
What if I can’t get my child into camp or daycare?
Many daycares and day camps are operating under a reduced capacity, and there simply may not be enough spaces available for everyone who needs one. Parents who cannot get a child care or day camp space are still entitled to accommodation.
You should keep any documents showing that the camps or daycares you have tried are full in order to establish that you have made reasonable attempts to register your child. You should also be prepared to show why other options are not feasible (for example, you do not have other adults or babysitters within your social circle who are available to provide care during your work hours).
Am I entitled to accommodation if I decide not to send my child to camp or daycare?
Maybe. You may need to demonstrate that you have explored the options available, and be able to justify why these options are not feasible.
The mere fact that daycares, camps or babysitters cost money may not be a sufficient reason to decline to use them, particularly for parents who have an income that could support these expenses. On the other hand, some families cannot afford these expenses, and if free subsidized programs are not available, then it may not be realistic to require parents to use paid services that they cannot afford.
Some parents may be concerned about the risk of their child contracting COVID-19 at the daycare or camp. There have been cases where children have become severely ill from the disease, and children may also bring the illness home to the rest of the family.
If 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.
However, some parents may simply be uncomfortable with the risk of their child contracting the novel coronavirus at daycare or summer camp, even if the child and everyone at home is perfectly healthy. These fears are understandable, given that outbreaks have occurred at certain daycare centres that were open for emergency workers in Ontario and at schools in Quebec when they reopened.
Nonetheless, it is possible that the Human Rights Tribunal would find that daycare or camps are a reasonable way of meeting a parent’s caregiving needs, given that public health officials have cleared these facilities to open. 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 Leave (i.e. a “COVID leave” or “Emergency Leave”) now that daycares have reopened?
The Employment Standards Act allows employees to take an unpaid leave of absence if they are providing care or support to certain family members “because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or daycare closures.” With daycares reopening, some people are asking whether or not caregivers are entitled to remain on leave.
There is a good argument that caregivers who cannot get a daycare space, or who have concerns about the risks of sending the child to a daycare could still qualify for this leave. The closure of schools and daycares are just examples of the reasons why a person providing care might not be able to work but the language of the Employment Standards Act makes it clear that these are not the only reasons that can justify a leave. The inability to secure a space or concerns that the child cannot safely attend might also support this unpaid leave.