As workplaces re-open, employers are getting all kinds of objections from employees about coming back to work. Common among these are childcare responsibilities. While some daycares and day camps are operating, things are far from normal. What obligation do employers have to accommodate refusals to come back to work due to childcare responsibilities?
Employee Protection Under the Infectious Disease Emergency Leave
In Ontario, employees who claim they cannot work due to childcare responsibilities may have job protection under the Infectious Disease Emergency Leave (IDEL). The IDEL provides job protection to employees who need to take a leave from work to care for their children whose school or daycare is closed because of COVID-19. The Ministry of Labour Guide on this leave also includes day camps being cancelled as a reason for the leave so we can be sure that the protection is meant to be expansive.
If an employee’s normal childcare arrangements are a no-go because of COVID-19 they will be entitled to this leave. The IDEL requires the employer to give the employee a leave of absence, to continue their benefits and to reinstate the employee when they return from the leave to their job or a comparable job if their job no longer exists. The employer does not have to pay the employee during the leave.
The IDEL can also be taken in different ways, including partial days. This essentially allows an employee to have flexible work. If an employee is able to have their child cared for by a relative for a partial day and can work for a partial day, they have the protection of the leave for this adjustment to their schedule.
If COVID-19 is no longer deemed to be a designated infectious disease under O. Reg 66/20 then the employee’s right to the leave will end. The employee’s right to the leave will also end if the triggering event ends – for example, the employee’s child’s daycare re-opens.
But Their Daycare IS Open!
If the employee’s regular childcare IS available then they will not have the ability to claim protection under the IDEL for this reason. Note that there are other reasons to claim IDEL protection – such as being sick with COVID-19, caring for someone sick with COVID-19 or quarantining after travel or possible exposure to COVID-19 – and that as an employer you cannot ask the employee for medical evidence to substantiate the reasons for the leave. A request for evidence reasonable in the circumstances is allowed. So, if the employee claims to have been travelling it would be reasonable to require them to prove this by producing a plane ticket, for example.
Back to childcare. If the employee’s regular childcare is available, and they continue to state that they cannot come to work due to childcare responsibilities, then the employer will need to consider whether human rights protection might legitimately be engaged such that the employer needs to accommodate the employee.
There are two lines of jurisprudence that consider the test for family status accommodation. In one, Canada (Attorney General) v. Johnstone, 2014 FCA 110, the employee must show that:
- that a child under his or her care and supervision;
- that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
- that he or 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 fulfillment of the childcare obligation.
In the other, Misetich v. Value Village Stores Inc., 2016 HRTO 1229 the individual must show that the employer’s requirement (say, coming to work) results in a “real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship,” and that while each case is contextual the employee may be required to “consideration of the other supports available.”
Regardless of which test is followed – the law is somewhat unsettled on this point – it is clear that the employee needs to consider the options available to him or her and that he or she cannot simply choose not to send the child to daycare out of personal preference. That being said, the situation may be different if there is a great health risk to a family member. This could engage another human right ground! Woohoo!
While we can’t say with certainty how the courts may treat all of the employment issues and scenarios COVID-19 has created, it’s likely that employees cannot simply refuse to work where childcare options are available to them and they wish to stay home – and have their job held for them to come back to – out of personal preference.
If you have questions about requests for accommodation from employees, get in touch for a consultation!