Daniel Lublin, Special to The Globe and Mail

Child care during COVID-19 can be a delicate balancing act for working parents and their employers. Employers must accommodate parents who need to provide child care – but there is often a tug-of-war on how far that must go.

The Ontario government’s last-minute decision to postpone a return to the classroom for many students highlights pressing legal concerns. Most workers with child-care obligations want to work productively and uninterrupted. However, sudden school and daycare closures can often make this impossible. What does the law require?

Accommodation means flexibility. Workplace human-rights laws across Canada require employers to accommodate parents (including non-biological parents) on the basis of their genuine child-care needs. Accommodation in this context is the legal requirement placed on companies to make adjustments to a position, wherever possible, in order to allow workers with child-care obligations to continue to perform their jobs while still caring for their children.

Employers must accommodate needs for child care during COVID-19, not preferences. The degree of flexibility an employer must show is often what is debated. Employers are not required to provide parents with all of their preferences for when and how their work will be performed and they must only accommodate genuine child-care needs. Thus, workers are not automatically entitled to remote work simply because they have to care for school-aged children. These workers must be prepared to demonstrate that they have pursued all reasonable efforts to secure safe alternative caregiving, such as daycare, spouses or other family members and that no other reasonable option can be safely arranged.

Given that various health authorities have discouraged close contact with anyone outside of the household, depending on where you live, safely arranging other child care such as daycare or other family members will be difficult, and employers have to accept that. However, workers must exhaust other options first.

Once a genuine need for accommodation is established for child care during COVID-19, employers must determine whether the essential conditions of the job can still be performed by a parent who is provided with a flexible working arrangement, such as varied hours of work, reduced hours, different functions or remote work. If a reasonable solution exists that will not cause an employer undue hardship, then by law, it must be offered to workers to assist them with child care during COVID-19.

Remote work must be considered. For parents who were already working remotely before the pandemic or asked to work remotely as a result, it will be difficult for employers not to tolerate a continued remote-work arrangement, at least temporarily until an alternative option for child care can be found or schools safely reopen. Remote workers are required to provide their full and uninterrupted attention during working hours. However, just as it would be at the workplace, there must be some leniency for unexpected interruptions.

Unpaid absences are a last resort. If the essential duties of a job genuinely cannot be performed without any form of reasonable accommodation, including working from home, then employers must provide parents with a leave of absence, although it would be unpaid. Some workers will welcome this option. However, for those that want to attempt to continue to work, it should be viewed as a last resort and offered only after all alternative arrangements are explored. If a leave of absence is agreed to or taken, then workers have various statutory protections upon the end of the leave, including the right to reinstatement.

Termination or retaliation is prohibited. Employers cannot fire or retaliate against parents because they must provide care for their children. Few employers would ever do so overtly as there is a heavy risk of legal exposure and a reverse burden of proof. Human rights and labour tribunals place the onus on the employer to demonstrate that their actions were not illegal, and in addition to reinstatement, can also order back pay and additional damages.

Child-care discrimination can be subtle. Workers are also entitled to protection from “adverse effect” discrimination, which is particularly dangerous as it can be more subtle. If a rule or practice applies to everyone in the workplace equally but has the effect of unintentionally singling out parents or caregivers, then it, too, is illegal.

My office is handling a case right now that illustrates exactly how this could occur. In December, an employer distributed a policy to all management staff recalling them to the office in January. While the policy was meant to apply to all senior employees, anyone who is required to care for young children is adversely affected. Such a policy is inherently illegal. Before policies or rules are created, employers also need to consider the impact on parents and make appropriate exceptions.

Accommodating child care is the law. It need not be perfect but available solutions must be considered and presented to parents.

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