I can’t work: I need to take care of my kids during COVID

The extent of the duty to accommodate childcare needs can be confusing, and conflicting legal decisions have not made it simpler. One thing that is clear is the employer’s duty to accommodate genuine childcare needs and the employee’s duty to cooperate. But putting that duty into practice, particularly in a pandemic, can be challenging.

Daycares and schools are open, so how can employees still raise childcare as an obstacle to working in the COVID-world? Restrictions on when kids can and can’t attend are strict. I speak from experience having my grade schooler home the past two weeks with sniffles. Or perhaps the child, a parent, or other family members in the household might be higher risk, so that sending the child to school or daycare is not a viable option.

Faced with a request to be off work, to work from home or to work modified hours due to childcare during the pandemic, what is an employer to do? Let’s look at your obligations and your options.

Leaves and benefits related to childcare during the pandemic

The Ontario Employment Standards Act, 2000, provides employees with the right to infectious disease emergency leave (“IDEL”). The leave is unpaid but job-protected and is only available to employees until January 2, 2021. Employees can exercise their right to the leave for a number of reasons related to childcare during the pandemic, including:

• to care for their child whose school or childcare was closed because of a designated infectious disease (in this case, COVID-19) or because the employee did not send their child to school or childcare out of fear the child would be exposed to COVID-19
• to care for a child who was sick with COVID-19 or who stayed home because of COVID-19 protocols at the school or childcare (e.g. the child was showing signs of illness and the school or childcare centre advised the child to isolate and get tested before returning)
• where the employee’s child had a symptom that did not automatically require the child to stay away from school or childcare, but the employee was concerned the symptom may relate to COVID-19 and chose to keep their child home as a precautionary measure

IDEL can be taken in full or part days. This allows parents flexibility to cope with sudden and irregular incidents of having to care for children who can’t attend school. Federally regulated employees also have a right to leave related to COVID-19.

The Canada Recovery Caregiving Benefit provides income support to employees who are unable to work because they must care for their child under 12 years old. Employees might be entitled to the benefit if their child’s school, regular program or facility is closed or unavailable to them due to COVID-19, or because their child is sick, self-isolating, or at risk of serious health complications due to COVID-19.

The duty to accommodate childcare needs

Employers also need to consider if there is a duty to accommodate the employee’s request based on family status under human rights legislation. The onus is on employers to consider each request in a meaningful way and based on the individual facts, keeping in mind that the circumstances are fluid and should be continually reassessed.

So what exactly is the test for family status accommodation in Ontario today? Well, that’s one of the challenges: the law is, as we lawyers like to call it, “unsettled”.

Up until 2016, I would tell you that it was fairly safe to follow the test in Canada (Attorney General) v. Johnstone, 2014 FCA 110, which requires the employee to show:

• a child is under the employee’s care and supervision
• the childcare obligation at issue engages the employee’s legal responsibility for that child, and not merely a personal choice
• the employee has made reasonable efforts to meet the childcare obligations through reasonable alternatives but no such alternative is reasonably accessible
• the workplace rule in issue interferes in a manner that is more than trivial or insubstantial with the fulfillment of the employee’s childcare obligation

However, the Ontario Human Rights Tribunal declined to follow Johnstone in Misetich v. Value Village Stores Inc., 2016 HRTO 1229, in which the Tribunal said:

• the employee must show a negative impact based on a family need that results in a “real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship” or to the employee’s work
• the impact of the rule in issue should be assessed contextually and may include consideration of other supports available to the applicant (note that this is a lower obligation on the employee than in Johnstone where the court required an employee to “self-accommodate”)
• if the employee can prove discrimination, the onus shifts to the employer to show that the employee can’t be accommodated without undue hardship

Regardless of the approach we follow, it’s still unlikely that a mere preference will properly ground an employee’s request for accommodation based on childcare needs.

Tips for employers

Since we are navigating these requests in the midst of both a pandemic and unsettled law, here are some guiding tips to keep in mind:

1. Case by case – Consider each request in a meaningful way based on the individual facts.
2. Seek information – An employer is entitled to information about what alternative childcare options have been explored and why those aren’t viable.
3. Confirm – Verify the reasons the employee is making the request: if something doesn’t seem right, do your research and test the information (e.g., if an employee says daycares are closed or are full, make some calls to local daycares to confirm).
4. Employee cooperation – Employees are expected to explore reasonable childcare alternatives: family members, dividing childcare with a partner who is also at home, babysitters and different daycares are just some of the possibilities.
5. Employee preference doesn’t dictate – Employees are not entitled to their preferred accommodation. The employer is able to offer reasonable accommodations that meet the needs of it’s business, keeping in mind that all reasonable alternatives must be considered and the employer is expected to accommodate to the point of undue hardship.
6. Be understanding – Many employees are genuinely juggling work and childcare for kids who either can’t attend school or daycare regularly or who are home sick for periods of time because of the daycare or school’s restrictions.
7. Be flexible – Be open to change and offer modified and alternative working arrangements where there is a legitimate need and it’s organizationally feasible, even if not ideal.
8. Continually reassess – Accommodation is not static: reassess and adjust regularly as the circumstances require. In some cases it might mean reassessing every week or two while in other cases you might revisit the situation every two months.