COVID-19 and Back to School: The Employer’s Duty to Accommodate Remote Learning
The COVID-19 pandemic ended the 2019 school year with months-long school and daycare closures, and required children to adapt to remote learning at home. To cope with increased childcare responsibilities, most parents suddenly had to ask their employers to modify their working arrangements, such as by allowing parents to work from home.
Now that Ontario’s schools are reopening for the 2020-2021 school year, many children are gearing up to head back to the classroom. However, in-person school attendance is optional, and some parents have decided that their children will learn remotely from home due to safety concerns. Parents making this decision may require modification(s) to their work duties, but employers may see their decision as a personal choice that does not trigger a duty to accommodate. Must employers accommodate the caregiving responsibilities of employees who have chosen to keep their children at home due to COVID-19 concerns?
The Duty to Accommodate Under the Human Rights Code
Under the Ontario Human Rights Code (the “Code”), employers are required to accommodate, to the point of undue hardship, workplace modifications that employees may require due to their “family status.” “Family status” captures the parent-child relationship and employees’ role as a caregiver to their children. An “undue hardship” will be established only if the required accommodation is unduly costly, or unsafe to implement, and decisions of Ontario’s Human Rights Tribunal impose a high burden on employers seeking to demonstrate that accommodation will cause them undue hardship.
Under the Human Rights Code, Must Employers Accommodate an Employee’s Choice to Keep Children at Home?
Whether an employer must accommodate an employee’s choice to keep children at home depends on the unique circumstances of each case. Under the Code, employers likely have an obligation to modify an employee’s duties or location of work if, for example, the employee’s child is staying home from school because:
- the child or another family member in the household is ill or in self-isolation;
- the child or another family member in the household is at a higher risk of infection; or,
- the child’s school or daycare closes, such as due to a positive COVID-19 infection.
In such cases, accommodation would likely be required to avoid situations that would result in a real disadvantage to the parent-child relationship or that force employees to choose between working and caring for their children.
What are employer obligations in situations where employees keep their children home from school for no reason other than a general concern for their children’s safety? Unfortunately, there is no clear answer to this question. In the past, general concerns that a child might become ill has not typically triggered an employer’s duty to accommodate. It remains to be seen whether the contagious nature of COVID-19, and the potential impact that the virus may have on children as well as their family members, changes things. The answer will become clearer only when Ontario’s Human Rights Tribunal rules on the matter. The Tribunal has yet to do so.
Human Rights Tribunal decisions interpreting the Code suggest that employees must first explore alternative childcare arrangements before they request a workplace accommodation of their caregiving responsibilities. Such arrangements may include hiring a babysitter or arranging for another family member to provide childcare. Having said that, where employees have a demonstrated need for accommodation, they must explore only reasonable alternatives. For instance, it may be unreasonable for an employee to bring a babysitter into the home where another member in the household is at a higher risk of infection. Financial circumstances may also cause an unreasonable burden in securing alternative arrangements.
When a duty to accommodate has been established, employers who receive a request for accommodation from an employee must, in good faith, (a) make efforts to understand the employee’s accommodation needs and consider options to accommodate those needs; and (b) implement the most appropriate accommodation reasonable, to the point of undue hardship. Potential forms of accommodation may include:
- allowing employees to work from home;
- allowing employees to work alternate or reduced hours, or to take breaks during the workday to perform childcare duties; or,
- allowing employees to take leaves of absences from work.
Employers must understand that the same solution will not work for every employee seeking accommodation. However, employers are not necessarily required to grant employees their preferred accommodation and employees must be open to accepting a reasonable solution that satisfies their needs.
The Duty to Accommodate Under the Employment Standards Act, 2000
In addition to obligations under the Code, employers should also understand their obligations under the Employment Standards Act, 2000 (the “ESA”). The ESA was recently amended to create Infectious Disease Emergency Leave, an unpaid job-protected leave for employees who need to be away from work to care for their children because of, but not limited to, school or daycare closures caused by COVID-19.
The Ministry of Labour’s ESA Policy and Interpretation Guide suggests that employees who have chosen not to send their child to school or daycare out of fear that their child would be exposed to COVID-19 can qualify for Infectious Disease Emergency Leave. Additionally, in its announcement extending the expiry of Infectious Disease Emergency Leave to January 2, 2021, the Ontario government indicated that employees who have chosen to keep their child home from school or daycare due to concerns about COVID-19 can qualify for this leave. Neither the advice found in the ESA Policy and Interpretation Guide nor the advice of the Ontario government has the force of law. Until the ESA is amended to state that the Infectious Disease Emergency Leave is available to employees choosing to stay home to care for children, or until the Ontario Labour Relations Board makes a ruling as to whether that is the case, the applicability of the ESA will remain unclear.
Employers should keep in mind that the ESA also allows for other unpaid leaves, such as parental leave, family medical leave, and family caregiver leave, and they may be applicable to an employee’s individual circumstances.
Given that the law with respect to accommodation of family status and the applicability of Infectious Disease Emergency Leave is uncertain in the context of COVID-19, employers and employees should consult legal counsel for assistance in making and responding to requests for childcare accommodation.
Employers routinely include “Termination without Cause” provisions in their employment contracts to limit their employee dismissal obligations. In a decision released on June 17, 2020, Ontario’s highest court found such a provision to be unenforceable.
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