Many employers have been faced with their employees struggling to balance their jobs with their childcare responsibilities as the COVID-19 pandemic has left many people without childcare options. While Ontario has permitted licensed childcare centres to reopen, there are strict health and safety requirements which place limitations on attendance at childcare facilities and which limit the child’s “bubble” of individuals who can supervise them outside of the facility. There may also be hesitant parents who do not want to place their child back into daycare while the pandemic is ongoing. In making decisions regarding employees struggling with these issues, employers need to keep in mind their duty to accommodate family status under human rights laws.
The Ontario Human Rights Code defines “family status” as being in a parent and child relationship. The Ontario Human Rights Commission has stated that “[a]n employee who has care-giving responsibilities should be accommodated to the point of undue hardship, which might include staying home. These care-giving responsibilities … could include situations where … their child’s school is closed due to COVID-19.”
There are two lines of cases that set out the test for discrimination on the basis of family status. One line of cases follows the test developed in Johnstone v. Canada (Border Services Agency), 2014 FCA 110. Under the Johnstone test, to establish prima facie discrimination, the employee must prove:
- That the child is under his/her care and supervision;
- that the childcare obligation at issue engages his/her legal responsibility for that child, as opposed to a personal choice;
- that he/she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
- that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.
The other line of cases is derived in Misetich v. Value Village Stores Inc., 2016 HRTO 1229, where the Human Rights Tribunal of Ontario rejected the Johnstone test in part because it was too onerous for applicants. Under the test developed in Misetich, the employee must establish that they have experienced a negative impact on a family need and, importantly, “the negative impact must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work”. Other supports available to the employee may be one of many considerations.
Both tests continue to be applied by the Tribunal and Ontario courts. Under either test, once the applicant establishes prima facie discrimination, the employer must accommodate the employee up to undue hardship.
Options for accommodating employees with childcare obligations could include allowing employees to work from home even after it is “safe” for them to return to the workplace, establishing modified and flexible schedules, and allowing unpaid leave of absences. As outlined in our previous newsletter, unpaid Infectious Disease Emergency Leave (“IDEL”) is available to employees who are required to provide care to a child because of a matter related to COVID-19, such as school or day care closures. Employees on IDEL are entitled to the usual leave protections under the Employment Standards Act, 2000 such as reinstatement to their position. They may also be entitled to EI or other federal support if their pay is reduced due to decreased work hours.
An employee’s preference does not necessarily need to be accommodated any time there is a negative impact on their childcaring responsibilities. For example, an employee’s preference that their child not attend daycare because of COVID-19 may not trigger a duty to accommodate now that the government has deemed it safe for daycares to reopen. However, a one-size fits-all approach should not be applied. For example, the duty to accommodate may be triggered in that case if the employee or child is immunocompromised. Employers must make reasonable efforts to accommodate each employee’s unique circumstances. This is balanced against considerations such as whether the employee can obtain alternative childcare as needed and their cooperation during the accommodation process.
No doubt the Tribunal and/or Courts will consider the COVID-19 pandemic in determining what amounts to undue hardship for every employer in their circumstances. However, how much, if any, this will lower the high bar required by employers to demonstrate undue hardship is unknown.
The duty to accommodate employees is a two-way street. Employees must request accommodation and accept reasonable accommodations. Employers will be expected to provide accommodations up to undue hardship. With uncertainty around the applicable legal test in addition to uncertainty regarding how the Tribunal and Courts will factor in COVID-19, employers are best guided by what is reasonable in the circumstances, balancing the specific situation of the employee with the business’ needs.
Please see our May Newsletter for additional employer considerations in returning to work.