Canada | Publication | September 20, 2021
With the return to in-person learning for the 2021-2022 school year, parents are faced with the possibility that their kids may be sent home throughout the school year for pandemic-related reasons. This raises questions for Ontario employers on the extent of their duty to accommodate employees with childcare obligations.
The Ontario government has released the updated COVID-19: Health, Safety and Operational Guidance for Schools (2021-2022) (the operational guidance) for the 2021-2022 school year. Among other things, the operational guidance outlines a myriad of scenarios where a student or staff member can be sent home from school. The operational guidance applies to schools and school boards across Ontario, as well as childcare centres and before/after school programs operating within the school.
Consequently, as the 2021-2022 school year begins, employers may be faced with an employee unable to work due to childcare obligations related to COVID-19.
To help employers navigate the unique challenges of the back-to-school period, we have summarized certain statutory leaves of absence under employment standards legislation and an employer’s family status accommodation obligations. Additional rules or guidance may be established by local schools, school boards, and/or public health.
There are a number of scenarios where students can be sent home from school and/or daycare unexpectedly and promptly, which means some parents may struggle to balance work and childcare throughout the 2021-2022 school year.
Provincially and federally regulated employers operating in Ontario should be aware that, in some cases, the circumstances may trigger obligations under applicable employment or labour standards legislation, including special COVID-19-related leaves, in addition to other protected leaves. This means that even if the employee does not qualify for a special COVID-19-related leave, or once the special COVID-19 leaves are discontinued, employers should consider whether, under the circumstances, the employee would be entitled to another job-protected leave under applicable legislation.
Unless the legislation or an employer policy or practice requires the leaves to be paid, this time is generally unpaid. Employees may then apply for various government benefits. Generally, employers should also note that employee eligibility for these leaves varies depending on the length of the employee’s service, the nature of the leave and other legal considerations. In addition, some leave provisions also impose varying requirements on employees to provide their employers with proper notice and supporting documentation.
When navigating this terrain, employers should also be mindful of any potential human rights implications under provincial or federal laws, which are discussed further below.
For provincially regulated employers in Ontario, obligations may flow from the Ontario Employment Standards Act, 2000 (ESA) and the Ontario Human Rights Code (the Code).
Infectious Disease Emergency Leave and Other Statutory Leaves
In particular, ESA obligations include giving eligible employees the option of taking a job-protected, infectious disease emergency leave (IDEL) when employees cannot work for certain personal reasons relating to COVID-19.
This leave was introduced early on during the pandemic and may be paid or unpaid depending the circumstances.
As of April 29, 2021, employers are required to provide eligible employees who do not have existing paid leave entitlements under their employment contract, with up to three days of paid IDEL retroactive from April 19, 2021. Employers can apply to the Workplace Safety and Insurance Board to be reimbursed for these payments. The paid IDEL entitlement applies until December 31, 2021, unless extended. There is, however, no specified limit to the number of days that an employee can be on unpaid IDEL.
More specifically in relation to childcare obligations, employees will only be entitled to paid IDEL if their child is under medical investigation, supervision or treatment for COVID-19 or is in quarantine or isolation related to COVID-19. However, employees may be eligible for unpaid IDEL where the employee is taking a leave:
Apart from IDEL, employees may also qualify for other ESA job-protected statutory leaves, such as family caregiver leave, family medical leave, family responsibility leave, and/or critical illness leave, if eligibility criteria are met.
Human Rights Obligations
In addition, employers have human rights obligations under the Code that may be triggered as kids go back to school this year, specifically regarding the prohibited of ground of discrimination relating to family status. In Ontario, family status is defined as “being in a parent and child relationship.”
Under the Code, employers must accommodate employees experiencing discrimination on the basis of family status up to the point of undue hardship. This means employers may need to offer flexible work arrangements or otherwise provide employees with time off work (which can be paid or unpaid) if the employee’s child is sent home from school and he or she is unable to make alterative childcare arrangements. That being said, it is important to note that the extent of an employer’s accommodation obligations and what constitutes undue hardship will require a fact-specific analysis of each employee’s particular circumstances.
More information for navigating an employee’s request to work from home for childcare reasons from a human rights perspective can be found here.
For federally regulated employers operating within Ontario, obligations may arise under the Canada Labour Code (the federal Code), and the Canadian Human Rights Act (CHRA).
Under the federal Code, employees working in federally regulated workplaces are entitled to up to 42 weeks of unpaid, job-protected leave if they are unable or unavailable to work due to COVID-19, which includes family care responsibilities related to childcare.
While the Code does not provide for paid leave related to COVID-19, federally regulated employees may have access to certain government benefits.
As with provincial employees, federally regulated employees may also be entitled to other protected leaves, paid or unpaid, under the federal Code such as personal leave, medical leave, compassionate care leave and/or leave related to critical illness.
Finally, regarding human rights, federally regulated employees enjoy protections under the CHRA, which also prohibits discrimination on the basis of family status. While the CHRA does not define this term, it generally includes situations where a person’s legal responsibility to provide care is triggered or where an individual must provide care to a family member. Similarly to the provincially regulated sphere, employers would be well served to carefully consider what measures can reasonably be taken to accommodate employees who may be entitled to protections under human rights legislation this school year.
Employers should be aware of the potential impact that the uncertainties of the 2021-2022 school year may have on their workforce. To mitigate possible risks in this area, prudent employers would strive to implement procedures specifically geared to respond to sudden changes in an employee’s childcare obligations, and ensuring those procedures are in line with the rights and obligations set out under applicable employment/labour standards and human rights legislation.
Additionally, employers ought to consider the protocols for employees returning to the workplace following a potential COVID-19 exposure (for instance, where their child has tested positive for COVID-19 or been exposed to a confirmed case of COVID-19 at school), particularly where there is no mandatory vaccination policy in effect in the workplace.
As always, employers should seek legal advice should any specific questions arise regarding their employment/labour standards and human rights obligations in all the circumstances.
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