Help! Accommodating parents working from home with school-aged children
By John Hyde
Employees who choose to keep their children at home do not have same protections as those with no choice
By John Hyde
EDITOR’S NOTE: ‘Legal steps & missteps: Addressing common workplace concerns’ is a weekly Talent Canada series, in partnership with John Hyde of Hyde HR Law in Toronto. This series takes a deeper look at issues in which organizations can be proactive to prevent legal issues and highlight where common errors occur.
Of all the questions Canadian employers have been wrestling with during the pandemic, there is one in particular that stands out and often results in legal missteps: How should we deal with employees working from home with school-aged children?
What may have initially appeared as a blessing for working parents starved for time with their children has inevitably proven to be one of the most contentious aspects of remote work.
The reality for most working parents is that providing full-time child care is incompatible with meeting the essential duties of their employment during the same hours.Advertisement
In the face of constantly wavering stay-at-home orders and closures of schools and after-school programs, employers have been pressured to adopt an all-or-nothing approach to prevent constant change and limit the impact on their business.
On the one hand, they could agree to a completely flexible work environment where every employee request is granted. On the other , they could take a hard-line position that enforces strict adherence to the work schedule.
At a time when there is enough confusion and distraction, both approaches are tempting, but both are also fertile ground for missteps. What are employers to do?
Dealing with school closures
The first thing management should consider is the nature of the restriction regarding school closures.
As of this writing, in Ontario, all elementary and secondary schools across all public health units have resumed in-person instruction as of Feb. 16, 2021, with in-person school attendance optional for both elementary and secondary students.
The reality is that employees who have a choice to send their children to school or daycare and refuse to do so do not have the same protections under the law as those who have no choice.
Emergency legislation across the country has been enacted to protect employees dealing with school closures.
In Ontario, the Infectious Disease Emergency Leave (IDEL) allows an employee to take a job-protected unpaid leave of absence in order to care for their child as a result of a school or day-care closure, or any other government order or directive.
At the conclusion of the leave, the employee is entitled to their job back, if it still exists, or one that is comparable.
The legislation is clearly intended to protect employees who have no choice but to care for their children as a result of government action, not those parents who have a choice but prefer to have their children learn from home.
Employers should therefore follow up with employees requesting such a leave to determine why they are requesting it.
Management is permitted to ask for “evidence reasonable in the circumstances,” including whether the employee has exhausted all child-care options.
If the request is purely a matter of preference for their child to learn at home when in-person instruction is available, then the employer would be justified in denying the request.
If the employee then refuses to come into work, an employer may be able to treat that work refusal as a resignation.
The danger of agreeing to such a request when there is no statutory requirement to do so is that it creates uncertainty regarding the employee’s return to work, potentially resulting in a costly termination down the road for a business that may already find itself in a precarious financial situation.
It is critical, however, that before denying any statutory leave, an employer fully considers the reasons underlying the request.
Under IDEL, for example, an employee would be entitled to an unpaid leave of absence if they had to stay home with a child diagnosed with COVID-19 or, was forced to quarantine as a result of COVID-19, notwithstanding the fact that in-person schooling is generally available.
Similarly, employers must also consider human rights legislation, which goes much farther than employment standards legislation in protecting employees with children.
In Canada, employers have a duty to accommodate parents up to the point of “undue hardship,” which is a high bar for any employer seeking to deny an accommodation request.
The duty to accommodate can require much more of an employer than a simple leave of absence. The fact that parents can send their kids to school or daycare does not end the inquiry.
For example, if an employee requests to modify their schedule to drive their child to/from school, an employer will have to reasonably consider that request. An employer who denies such a request because it is inconvenient, could find themselves subject to a human rights complaint.
Ultimately, employers should carefully consider the reason for any accommodation request, and the organization’s genuine capacity to provide accommodations to working parents.
Now more than ever, employers must balance their operational needs with their legal obligations, which continue to evolve amid changing rules and regulations.
John Hyde advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.
Oren Barbalat, an associate at Hyde HR Law, co-wrote this commentary.
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