Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Updated September 4, 2020: On September 3, 2020, Ontario announced that parents who decide not to send their children back to school due to concerns about COVID-19, have job protection through the Infectious Disease Emergency Leave if they need to stay home.
When the COVID-19 pandemic dramatically changed the state of the world in March 2020 and made employees’ normal childcare arrangements generally unavailable, Canadian employees (other than some essential workers) began to work from home. As the rate of infection diminished, Canada gradually reopened; most jurisdictions are now in Stage 3 of their reopening processes, with public health and workplace safety restrictions in place. Many businesses and public spaces have reopened, and while many employers have asked their employees to return to work, some have asked their employees to continue to work from home.
In the meantime, the world has not returned to normal for employees’ children. Daycare centers that initially remained open provided childcare for only essential workers; in the spring, other daycares opened with strict health and safety guidelines in place. Camps did not operate in the summer. Although there are plans to get children back into the classroom in the fall, many schools intend to adopt a hybrid model due to social distancing requirements, with students in the classroom on some days only, and learning online the rest of the week. A hybrid back-to-school arrangement, together with the possibility that schools might close upon the occurrence of a second wave, or upon a COVID-19 outbreak within a specific school, will create childcare difficulties for employees. Furthermore, some parents who have childcare options available to them in the form of school, daycare, or babysitters may resist using them due to anxiety about the risk of exposing their children or another family member to COVID-19.
In responding to employees who have childcare issues, employers have several options to consider. They include providing employees with flexible accommodations; placing them on unpaid statutory leave under applicable employment standards legislation; or in the rare circumstances in which employees may be entitled to it, placing them on paid leave made available through a collective agreement in a unionized context, an employment contract, or a workplace policy. We consider all of these options below.
Family Status Accommodation
We wrote extensively about the unsettled legal approach to family status accommodation in Canada. As noted, although human right statutes in Canada prohibit discrimination based on family status, historically family status complaints, which most often relate to discrimination in employment, are generally made infrequently, especially as compared with discrimination complaints on other grounds. The frequency of family status complaints may rise in a COVID-19 environment and we recommend that employers become familiar with the unsettled approach to family status discrimination in Canada.
In normal circumstances, a family status complaint will generally fail if it is based on a preference to care for a child at home rather than a need to do so. However, in a pandemic scenario, even if schools and daycares are available, some employees may be concerned that their children or other family members will become ill with COVID-19 if their children attend. While employees are generally expected to explore other childcare options during business hours, such as babysitting by a grandparent or a paid babysitter, they may resist these options during the pandemic to protect the health of the grandparent and/or the child. For this reason, in the extraordinary context of the pandemic, employers should consider accommodating their employees by developing a flexible company-wide accommodation policy that takes a reasonable approach to their employees’ circumstances. This may include allowing employees to work from home or modify their work schedules or work duties, and tolerating disruptions from children during teleconference meetings.
Despite an employer’s best efforts to provide a feasible accommodation to an employee, it may not be able to find one. If accommodation is not an option, employees may be entitled to unpaid leave under applicable employment standards legislation. For example, in Ontario, the following unpaid, job-protected leaves may be available to parents whose children are at home during the COVID-19 pandemic:
- Family Responsibility Leave: After working for an employer for at least two consecutive weeks, most employees in Ontario have the right to take up to three days of unpaid job-protected leave each calendar year because of an illness, injury, medical emergency or urgent matter relating to, among others, the employee’s child, step-child, or foster child. As the circumstances surrounding the COVID-19 pandemic are unprecedented, it is unclear whether, when employees decide to keep their children at home even when schools and daycares are open, the courts will characterize the matter as “urgent.” However, in a hybrid school model, on days when children are not allowed to attend school and must learn online, courts may be more likely to characterize the matter as “urgent” and entitle the employee to this unpaid leave; on days when classes are on the school’s premises, courts may not be inclined to do so.
- Infectious Disease Emergency Leave: In response to the COVID-19 crisis, the governments of a number of jurisdictions in Canada amended their employment standards legislation to entitle employees to emergency unpaid job-protected leave when they are unable to work for reasons related to the designation of COVID-19 as an infectious disease. In Ontario, for example, the new unpaid Infectious Disease Emergency Leave applies when an employee will not be performing work because the employee is providing care to a specified list of individuals for reasons related to COVID-19, including to children, because of closures of schools and daycares. Entitlement to Infectious Disease Emergency Leave continues as long as the circumstances apply and COVID-19 continues to be a designated infectious disease. Note that if the school or daycare is open, the employee will not be entitled to this leave. If employees have children attending a hybrid model school, they may be entitled to Infectious Disease Emergency Leave on days when their children may not attend school and must learn online.
Finally, in rare circumstances, some employers may have agreed that their employees will be entitled to paid leave if they have childcare obligations in a scenario like the one we are currently facing, for example, pursuant to a collective agreement in a unionized environment, or pursuant to an employment agreement or a workplace policy. Employers are encouraged to consider whether their employees are so entitled before placing them on unpaid leave under applicable employment standards legislation.
Bottom Line for Employers
The pandemic has made it impossible to predict exactly how courts will treat employees who fear sending their children to daycare or school and choose to keep them at home. Although these employees may not be strictly entitled to family status accommodation, in the unprecedented circumstances of a global pandemic, we recommend that employers adopt a flexible approach to accommodating employees who have children at home, whether due to preference or a lack of other options. If flexible accommodation is not a viable option, we recommend that employers consider placing these employees on unpaid leave, after first considering whether they have agreed to put them on paid leave in the circumstances, which will rarely be the case.