Can Working Parents Be Dismissed for Staying at Home?team
As Ontario scrambles to handle COVID-19 variants amidst the third wave, it has delivered some mixed messages about in-person instruction at school. On April 12, 2021, Ontario confirmed that students will be reverting to online learning indefinitely. Although childcare centres remain open, before and after care for school-aged children is not being offered. This announcement left many parents and caregivers wondering how they will juggle supervising their children at home and their work. A common question we receive is, can working parents be dismissed for staying at home to take care of their children? The answer depends on the circumstances surrounding the refusal to return to in-person work.
A Preference to Work from Home
Many workers have found that they prefer working from home for reasons such as avoiding a commute, efficiency, and comfort. However, as vaccines roll out, many employers are planning for the return of workers to the office full-time.
Where an individual wants to work from home for reasons such as preference or convenience, there is no obligation on the employer to consider this request. Many employers are learning that they can have successfully have a remote team and so may consider the request. However, it is the employer’s decision on how they want to proceed, which means they can deny the request.
If an employer does not agree to a worker’s preference to work from home, the worker is generally required to return to work when recalled. Where the worker refuses to return to the workplace, s/he may be terminated for reasons such as job abandonment.
Employment and Family Status under Human Rights Laws
A worker may need to work from home for reasons beyond personal preference.
Under Ontario’s Human Rights Code (the Code), a person is protected from discrimination in certain social areas and based on certain protected characteristics. The ground of “family status” protects parents and caregivers in a parent-child type relationship. The ground of family status can also protect people caring for aging parents or relatives with disabilities.
Employers have a legal duty to accommodate their workers based on that person’s family status. In the COVID-19 context, if a parent is required to stay home to supervise their children participating in online school (and there are no suitable alternatives), then the employer has a responsibility to explore accommodations to address that worker’s childcare obligations.
However, employees also have a responsibility to explore all other options and demonstrate they have attempted to make alternative arrangements for childcare but were unable to do so. During the pandemic, many alternatives are not suitable or available, thereby requiring employees to request that they be allowed to work from home based on the ground of family status.
Restrictions on Accommodation
Even where a worker demonstrates a need for family status accommodation, an employer is still not required to automatically allow the worker to work from home. Accommodation is collaborative process that requires all parties to work together to reach a resolution.
There are many creative and practical options that can be explored that work for both the worker and the employer. For example, where a worker has a partner who can assist with childcare obligations part-time, then the parties can negotiate a schedule where the worker attends the workplace in person only during certain times or days.
In discussing family status obligations, it is important to reiterate that a worker’s “preference” is not required to be accommodated. Further, not all jobs can be effectively completed from home. Where an employer can demonstrate that a work from home arrangement amounts to undue hardship, then the employer would not be obligated to impose that accommodation.
If an employer refuses to accommodate your childcare obligations or explore suitable alternatives, contact an employment and human rights lawyer to learn about your rights and options.
Where a worker’s obligations may not be covered under the ground of family status, there are other options under employment standards legislation. For example, the Employment Standards Act allows workers to take leaves such as the recently introduced Infectious Disease Emergency Leave (“IDEL”), among others.
IDEL is an unpaid job-protected leave that may be taken by employees who need to take time away from work in order to care for their children for reasons such as school closures caused by COVID-19.
If you are an employer who requires assistance with accommodations, or an employee who has believes you’ve been discriminated against, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.
If you are a small or medium-sized company looking for full-service support with same day response, visit our CLO Program page for our strategic solutions.