In some form or another, it’s looking like in-person learning will be going ahead this school year but that parents can keep their children home if they wish. In many cases, employers whose operations have been remote for the past several months are looking to bring employees back to the office. What if an employee doesn’t want to send their child back to school and subsequently insists that they cannot, therefore, come back into the office to work? What are an employer’s options?
If an employee will not be sending their child to school and insists that they too need to remain at home, ask why. While all things COVID-19 present novel legal situations, and we don’t yet have any certainty on how courts and tribunals will rule, it’s reasonable to assume that if your employee has a legitimate disability-related COVID-19 exposure concern this should be accommodated. Asking your employee why they are not sending their child to school allows them to raise their need for accommodation.
Reasons which may reasonably require accommodation could include the child is high-risk or someone else in the household is high-risk. An employer should ask for medical documentation to support that the employee should not send their child to school due to a medical reason.
If an employee states that they just don’t feel comfortable or that they prefer to keep their child at home, this would likely not be a reason attracting accommodation. Where public health advice suggests that sending kids to school is safe, an employer can rely on that direction absent legitimate medical evidence specific to the employee to suggest otherwise.
Options for Accommodation
If an employee provides a legitimate reason for keeping their child home and needing to stay home themselves, an employer likely has a duty to accommodate. However, the accommodation does not have to be the one that the employee chooses. While employers may have been flexible early in the pandemic, it is not reasonable for an employee to expect to be able to care for small children learning remotely and also work from home full-time. An employee in this scenario could be placed on an unpaid leave, on reduced work hours or an alternate schedule. The employer will generally have a duty to accommodate the employee up to the point of undue hardship.
Where the employee insists that they cannot come back to work, but has not established a need for accommodation – they are keeping their child home out of preference and not for a substantiated medical reason – an employer may choose to offer the employee an unpaid leave or may choose to take the position that the employee is abandoning their employment by refusing to return to work. There is no perfect answer here, and while we as of yet don’t know how decision-makers would view this situation, where possible employers should likely be flexible.