The implementation of physical distancing measures in the face of the global COVID-19 pandemic has raised a number of issues for workers with family obligations. Many workers are now being asked to work from home on a regular basis. At the same time, schools and childcare institutions have been closed and are only in the process of reopening, with the future success of these efforts remaining uncertain. Other workers face the need to care for sick family members, preventing them from fully meeting their work obligations.
Human Rights law, which has been found to provide certain protections to allow workers to balance their family and work obligations, can play an important role in navigating these issues.
How am I protected as a parent and an employee?
Human Rights law seeks to protect people from adverse consequences flowing from the fact that they exhibit one of the protected characteristics enumerated by the legislation. In this case, the protected characteristic is called “family status”.
The protection from discrimination on the basis of family status has been interpreted to protect people from adverse consequences in their employment flowing from their family care obligations. What is protected, however, may depend on whether your employer is federally or provincially regulated.
In Ontario, it is generally enough to show that the employer’s rule has a substantial negative effect on the parent/child or family care relationship and the responsibilities that attach to it. In assessing whether there a prima facie case of discrimination has been made out, the decision maker can look at the supports available to the claimant, but the claimant is not required to exhaust all options in attempting to self-accommodate.
Case law from the Human Rights Tribunal of Ontario provides a helpful foundation for parents juggling work and family obligations, including the obligation to assist their children with e-learning and other activities meant to replace school while schools are closed in response to COVID-19. Parents will be expected to make reasonable efforts to meet all of their obligations, but employers will also be expected to make reasonable concessions and allow for accommodations that will help parents to meet their obligations.
Employees who are federally regulated may have a more onerous test to meet. The Federal Court of Appeal has stated that an employer is only obligated to accommodate a family obligation when it arises from a “legal obligation”, as opposed to a “personal choice”. The implications of this requirement in the COVID-19 context remain to be seen, particularly given decisions from arbitrators and human rights tribunals, such as the arbitration award in SMS Equipment, indicating that additional requirements in the family status context are not appropriate.
A Recent Example
Arbitrator Jesin recently dealt with a COVID-19-related family status grievance. The grievor, who works in Sault-St. Marie and lives in Michigan, had a unique situation brought on by COVID-19. While he was not required to self-isolate for fourteen days after entering Canada due to an exemption in the regulations, the employer had a rule that required it, effectively making it impossible to both work and see his young children.
Arbitrator Jesin held that it was unreasonable for the employer to apply its policy without accommodating the grievor’s family status. He suggested that the employer adapt the policy to fit better with the grievor’s circumstances and that it might consider other precautions such as increased PPE or restricting him from going to COVID-19 “hot spots” in the US.
This decision is notable for the fact that it does not consider the issue of whether it was the grievor’s choice to maintain his custody arrangement or take up residence in Canada. The duty to accommodate was taken as a given. The decision is an example of Ontario arbitrators’ willingness to go straight to the question of accommodation where an employee has experienced adverse consequences as a result of a work rule and their family realities.
Addressing Family Status Concerns
If you are having difficulty keeping up with both work and childcare obligations, you can ask your employer to accommodate you. This may mean a later start time, more reduced hours, or other accommodation measures that may be necessary in the circumstances. If the employer refuses to provide any accommodation, though not necessarily the requested accommodation, it will have to show that not only does the requested accommodation would interfere with a bona fide occupational requirement and that it would experience undue hardship if forced to accommodate.
If you have any questions about these issues or your employer has refused to provide an accommodation it may be time to contact an employment lawyer or your union.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]