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Article Posted Tuesday September 15, 2020


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What If ...

Q&A on School Reopening, Childcare and Employer Obligations

With an atypical school year now underway, many employees may request workplace leniency or accommodations as their families adapt to a new normal. What obligations do employers have – or not have – when it comes to their employees’ childcare and schooling arrangements. Lisa Cabel, National Employment and Labour leader for KPMG Law shared some insights on these and other complex questions facing employers and employees alike:

Q: My employee has enrolled their child in remote learning as opposed to classroom instruction. Do I have to give the employee time off to facilitate their child’s schooling?

Whether an employer must accommodate an employee’s childcare arrangement depends in part on the circumstances surrounding the arrangement.

Is the child’s school or daycare closed due to COVID-19? If so, then the employee may qualify for job-protected Infectious Disease Emergency Leave (IDEL) under Ontario’s Employment Standards Act. (Although the “deemed” IDEL is ending on September 4, 2020, that does not mean that IDEL ceases to be available to employees who meet the qualifying criteria). IDEL would likely entitle this employee to take unpaid, job-protected leave to supervise the child’s schooling.

If the school or daycare is open and the employee has voluntarily chosen remote learning for their child, then IDEL would not be available.

IDEL aside, human rights obligations may require the employer to accommodate the employee’s childcare duties to the point of undue hardship. This accommodation obligation is very likely to arise if schools are closed and remote learning is mandatory, but may also arise if the employee elects for remote instruction. Whether accommodation is legally required in the latter instance depends on the circumstances, often including whether the employee reasonably canvassed childcare alternatives.

Q: Instead of taking time off, my employee wants to balance childcare and work. Can I refuse to permit this?

Subject to accommodation obligations under human rights legislation, an employer can refuse to permit an employee to assume childcare responsibilities during their usual workday. Generally speaking, an employee is expected to make childcare arrangements so that their duties at home do not interfere with their duties at work.

However, an accommodation analysis (similar to the question above) is necessary. Typically, the duty to accommodate this arrangement would not arise unless the employee has, after reasonable efforts, been unable secure a reasonably accessible childcare alternative. It is important to remember that both parties have a part to play when determining whether accommodation is required. Frequent, open communication is the best strategy in these circumstances.


Q: What if my employee’s child contracts COVID-19 or is required to isolate after coming in contact with the virus – do I have to give them time off?

IDEL covers situations including care for certain family members who have contracted or are quarantined as a result of COVID-19. An employee may therefore be entitled to unpaid, job protected leave to care for their ill or quarantined child. The ESA also offers other categories of unpaid, job-protected family care and medical leaves that may apply in these circumstances.

This situation may also engage an employer’s human rights obligations, as above. Again, subject to an accommodation analysis, an employer is likely obliged to provide an employee with time off to handle certain childcare obligations.

Q: What if the child of my employee contracts COVID-19 or is required to isolate after coming in contact with the virus – do I have to give them time off?

IDEL covers situations including care for certain family members who have contracted or are quarantined as a result of COVID-19. An employee may therefore be entitled to unpaid, job protected leave to care for their ill or quarantined child. The ESA also offers other categories of unpaid, job-protected family care and medical leaves that may apply in these circumstances.

This situation may also engage an employer’s human rights obligations, as above. Again, subject to an accommodation analysis, an employer is likely obliged to provide an employee with time off to handle certain childcare obligations.










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