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Don’t Get Schooled: Know How to Address Requests for Leaves and Accommodation in this COVID-19 School Year

CCPartners has published a number of blogs recently regarding workplace law challenges created by COVID-19 and the public health measures taken to flatten the curve.  You can read all of our Employers’ Edge blogs on COVID-19 topics here.  One big adjustment for employers has been the introduction of Infectious Disease Emergency Leave under s.50.1 of the Employment Standards Act, 2000 in Ontario, our latest blog on which can be read here.  Infectious Disease Emergency Leave expires in certain contexts on September 4, 2020, but in other cases, entitlement to the leave does not depend on a declared state of emergency.  This means, for example, that so long as COVID-19 remains a prescribed infectious disease under the Employment Standards Act, 2000, employees in Ontario may be entitled to an indefinite, unpaid, job-protected leave of absence if their children’s schools or daycares are closed.  This blog will examine the application of the Infectious Disease Emergency Leave entitlement, and in the alternative, whether an employer has a duty to accommodate their employees’ childcare obligations at the beginning of the school year.

Entitlement to Infectious Disease Emergency Leave

For our review, the relevant provision of the Employment Standards Act, 2000 reads:

Leave of absence without pay

(1.1) An employee is entitled to a leave of absence without pay if the employee will not be performing the duties of his or her position,

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(b) because of one or more of the following reasons related to a designated infectious disease:

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(v) The employee is providing care or support to an individual referred to in subsection (8) because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or day care closures.

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There are three elements that must be satisfied in order for an employee to be entitled to an Infectious Disease Emergency Leave due to a school or daycare closure:

1. The employee will not be performing the duties of their position;
2. The employee will not perform their duties because of a described reason related to a designated infectious disease (ie. COVID-19); and,
3. The employee’s child(ren)’s school or daycare is closed.

The third element is generally easy to assess.  Many of the province’s daycares are re-opened, but some are not.  Schools are slated to re-open in early September, but conceivably that may be delayed – in fact some schools are staggering their start dates for different grades.  If an employee’s child(ren)’s school or daycare remains closed due to COVID-19, the third element is satisfied.

The first two elements require more examination.  The employee is not performing their duties because the school or daycare remains closed due to COVID-19.  These elements will not be satisfied if, for example, the employee can perform their work remotely or according to a modified work schedule.  If that is the case, the school or daycare closure is not preventing the employee from performing the duties of their position, and they are accordingly not entitled to take Infectious Disease Emergency Leave.  However, if an employee’s duties require them to attend at a particular location during particular hours that conflict with their childcare obligations, they will be entitled to the leave of absence so long as the elements are satisfied.

Duty to Accommodate on the Basis of Family Status

The case of an employee whose work can be modified in response to school and daycare closures presents a different legal principles.  Employers have a duty to accommodate employees’ family status obligations.  In Ontario, “Family Status” refers to being in a parent/child relationship.  A number of our Employers’ Edge blog articles have focused on family status, the most recent of which can be read here.

An employee who can perform their work so long as they receive some modifications to allow them to fulfill their childcare obligations, and so long as it would not present an undue hardship for the employer, would be entitled to accommodation.  In the example provide above, temporary remote work or modified hours arrangements would constitute accommodation on the basis of family status.

It is important to note however that while different lines of cases have emerged with respect to the extent to which an employee has to “self-accommodate” their family status obligations, there is no dispute that accommodation on family status grounds is reserved for accommodating obligations, and not merely preferences.  For example, in a two parent household where one parent can easily work remotely and according to a flexible work schedule, the other parent will not be likely to establish a right to accommodation from their employer because they only prefer to be a primary care provider.

Unlike employees who have a right to take a leave of absence under the Employment Standards Act, 2000, employees entitled to workplace accommodation are limited to reasonable accommodation up to the point of undue hardship on their employer.

Bottom Line for Employers

There is no doubt that employees will be making requests to their employers with respect to balancing childcare obligations and employment duties, particularly as Ontarians navigate school and daycare re-openings.  It is important that employers understand their obligations and their employees’ entitlements, both under employment standards principles, and with respect to human rights.

If you have questions about how to navigate these new and tricky issues, click HERE for a list of our team members who can help. Click HERE for a link to CCP’s COVID-19 Blog series, catch our webinars and podcasts on YouTube and SoundCloud, or wherever you listen to podcasts, or contact any of our team members to answer you workplace questions.