Can you stay home from work if your child doesn’t return to school during COVID-19?

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With summer coming to a close, provinces and their respective school boards are finalizing their back-to-school plans for students at the elementary, middle and secondary school levels amid the COVID-19 pandemic.

Some school boards have presented options that include having children attend school either in person, remotely or a combination of both. Others have dictated a particular plan without any options. Each situation presents its own set of challenges for employees when it comes to balancing employment and family obligations.

My employment law team in both Ontario and British Columbia is fielding a growing number of questions related to back-to-school plans, and the rights and obligations of employees and employers. Here are the answers to some of the most commonly asked ones.

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Does an employee have the right to stay at home if they choose to enrol their child in remote learning this fall?

A recent poll by Leger and the Association for Canadian Studies found that 20 per cent of parents are planning to keep their kids home from school this fall. A caregiver who chooses this route may decide to stay home to supervise their child’s remote learning or homeschooling.

Employees who select this option should know that their employer has no obligation to accommodate a personal preference, and can consider the individual to have resigned from their job if they refuse to return to work. 

Although some school boards have given caregivers a choice whether to send children back to school, an employer does not have to accommodate choices. An employer only has to accommodate requirements.

Before requesting accommodation from their employer, an employee must exhaust all options and communicate these efforts to their employer. In this case, alternatives could include supervision by another family member or caregiver, or in-class learning offered by a nearby school.

What’s an employer’s duty to accommodate employees’ child-care and family-related obligations?

The accommodation process is a collaborative one and requires the employee to make best efforts to avoid having to request an accommodation in the first place.

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If the need for an accommodation is completely unavoidable, though, the employer is obligated to provide one.

The law is clear that an employer must accommodate an employee to the point of undue hardship when it comes to their family and child-care obligations. Adjustments for the employee’s benefit may include a change in work hours, expanded lunch breaks, remote work for part or all of a work week, or permission to take additional time off.

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An accommodation can and will likely cause some inconvenience to an employer, but this is not necessarily undue hardship. Our courts have confirmed that the fact that an accommodation may cause some inconvenience is not itself a justification for an employer to refuse or fail to accommodate an employee.

What should employees do if the situation involves failure to accommodate or wrongful dismissal?

If there are no alternative arrangements available, caregivers have the right to stay home and off work without pay on a leave of absence. This leave protects them from punishment by their employer and termination from their job.

If their employer ignores their duty to accommodate and fires the employee, that individual can pursue full severance pay and additional compensation with help from our firm through wrongful-dismissal and human-rights claims.

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With several vaccines in development, working parents and employers may not have to grapple with the child-care issue on a long-term basis. In the meantime, employees and employers throughout Canada will need to work together to ensure that employees are cooperating and making choices to facilitate their work obligations, and that employers are doing their best to accommodate employees when necessary.

Is your employer refusing to make legitimate workplace accommodations for you? Are you experiencing temporary or permanent changes to your employment during the COVID-19 pandemic?

Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario or British Columbia. Get the advice you need — and the compensation you deserve — during this crisis.

Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims.