COVID-19 Developments and Legal Updates
“Won’t somebody please think of the children?”: Family status accommodation for employers during COVID-19
On a typical, “normal” day in many Canadian households, adults leave home to go to work, and kids attend school or perhaps daycare. As we keep hearing, though, these are far from “normal” times.
StatsCan reports that some five million Canadians worked from home during April, including 3.3 million who did not work from home pre-pandemic.1 In the meantime, schools and daycares have been closed this spring across the country and around the world. Many parents are therefore now working from home in the absence of child care, and must juggle the competing obligations of childcare and work. Families are being asked to limit their contacts with others – in several provinces the concept of a family “bubble” or “double bubble” is frequently referenced – which reduces the availability of non-family caregivers.
With just six weeks left in the school year, it appears increasingly likely that most Canadian schools will not reopen before the regular June end date. This week, we have seen indications from Manitoba2 and in Newfoundland and Labrador3 that grades kindergarten through 12 may not re-open for in-person classes even in September 2020. Other provinces may follow suit. There is also a reasonable possibility that even in jurisdictions where schools are open, not all families will send their children to school. In Quebec, schools have already begun to re-open, but students’ attendance is not mandatory.4
It appears that some children may remain at home, in the company of their telecommuting parents, for the foreseeable future.
In the meantime, businesses and workplaces are beginning to re-open or expand operations in Atlantic Canada. Employers might be ready for a physical return to the workplace, but parents may continue to be stuck between a rock and a hard place when it comes to child care. Your employees may request to continue their work from home even after workplaces re-open, particularly in jurisdictions where school openings occur later.
Employers should keep an eye to their obligations of non-discrimination and accommodation on the basis of an individual’s family status. The human rights legislation in all Canadian jurisdictions, including for federally regulated employers, includes protection against discrimination on the basis of family status. Human rights obligations relating to family status are interpreted somewhat differently across the country, but there is agreement that the requirement to provide care to one’s children5 falls under the category of a protected family status activity.
The pandemic has significantly reduced or eliminated the availability of non-family child care for all parents. In the current environment, reasonable efforts to secure childcare might come up empty-handed.
Employees whose participation in the workplace is impacted as a result of their family status are entitled to accommodation up to the level of undue hardship. The specific facts that constitute undue hardship will differ in each individual circumstance, but we suspect that during these extraordinary times, human rights adjudicators may hold employers to a somewhat higher standard in terms of what accommodations are reasonably required of employers.
Accommodation is a two-way street. To trigger the duty to accommodate, employees have to be reasonably forthcoming about their family status and be open about their needs. Employees have a right to reasonable (not perfect) accommodation. On the other hand, the goal of an accommodation is to allow the employee to be productive and to contribute meaningfully at work.
What should employers consider in addressing family status accommodation requests?
- Be flexible. Could an employee start work early, stay late, or work a split shift? Though it may not work for every business type, could you allow employees to determine their own hours? Can you measure productivity through metrics that are not based on time spent at one’s desk?
- Communication is key. Initiate conversations with all your employees, but especially those who have child care obligations, to encourage transparency about their abilities and challenges. Check in occasionally to monitor how things are working and whether circumstances have changed.
- It’s a marathon, not a sprint. How sustainable is the requested accommodation in the longer term for both parties? Ask employees what factors impact their need to continue to work from home. The need for accommodation might be short-term, for example where a 14-day self-isolation is implicated; or it might be longer-term, where no school is available, or the family is making efforts to protect an immunocompromised individual.
- Establish a forgiving workplace culture for these strange times. Many of the employees who are working from home are not doing so by choice, but out of necessity. There may be some level of “real life” faced by your employees in the form of a child’s brief interruption during a telephone call or video chat.
- Evaluate your work needs creatively and with an open mind. Can employees attend the office part-time and work from home the remainder of the time? Could you operate with only a portion of your workforce on-site? Having a reduced workforce on-site might dovetail effectively with maintaining physical distancing requirements in your workplace.
- Consider stress and mental health impacts. The CMHA reports that significant numbers of Canadians are feeling isolated and anxious during the pandemic, with very few reporting general happiness.6 Parents are not immune. Educate your workforce about the signs of stress and burnout, encourage mental health self-care, and offer access to mental health supports to those who need them, including through your EAP.
1 Statistics Canada, 8 May 2020 Labour Force Survey, April 2020: https://www150.statcan.gc.ca/n1/daily-quotidien/200508/dq200508a-eng.htm
2 Global News, 15 May 2020 “Manitoba schools may not reopen by September, says school boards association president”: https://globalnews.ca/news/6942791/manitoba-schools-reopening-plans-coronavirus-school-boards-association/)
3 CBC News, 14 May 2020 “NL students staying home this September, as CNA, MUN online – and K-12 may follow suit”: https://www.cbc.ca/news/canada/newfoundland-labrador/fall-education-online-1.5568199
4 Montreal Gazette, 12 May 2020 “Rest of Canada is watching as Quebec sends its children back to school”: https://montrealgazette.com/news/local-news/rest-of-canada-is-watching-as-quebec-sends-its-children-back-to-school/
5 Providing care to other family members, including an elderly parent, can also have implications for family status accommodation.
6 Canadian Mental Health Association, 4 May 2020, “Canadians are anxious and crave real connection, but say they’re doing ‘fine’”: https://cmha.ca/news/canadians-are-anxious-and-crave-real-connection-but-say-theyre-doing-fine
This article is provided for general information only. If you have any questions about the above, please contact a member of our Labour and Employment group.
Click here to subscribe to Stewart McKelvey Thought Leadership articles and updates.