February 04, 2021
Parental obligations have perhaps never been so widely felt in Canadian workplaces as they are today. Province-wide lockdowns, unpredictable school closures, mandatory at-home schooling, varying day care options, and heightened stresses are but some of the faced challenges. Until the crisis comes to a vaccinated end at some point in late 2021 – and potentially for some time thereafter – it can be expected that parents may continue to be disproportionally impacted by struggle and hardship. US companies with operations in Canada should therefore consider paying special consideration to employees’ family care obligations, and look at how these needs can be properly accommodated.
Parents in most parts of Canada have access to leave entitlements under employment standards legislation. For example, in Ontario, parents may access job-protected, unpaid infectious disease emergency leave when employees cannot work for certain personal reasons relating to COVID-19, including where an employee needs to provide care or support to certain family members for a reason related to COVID-19. During the leave period, employees have the option of deferring any vacation entitlements to the end of their leave, and they will continue to accrue service and seniority with their employer. Similar legislation has been passed in British Columbia, Alberta, Saskatchewan and a number of other provinces in Canada. In Quebec, employees can take up to 10 days a year to fulfill childcare obligations, the first two days being with pay if the employee has completed three months of uninterrupted service.
In addition to these various statutory leaves of absence in Canada, individually assessed and crafted accommodation measures may be required under provincial and federal human rights legislation, namely where child care obligations are at issue. For instance, where a child is sent home from school because of an outbreak or school closure, parents may have an obligation to ensure that the minor is properly supervised and cared for. Where it is not possible for children to be supervised by another adult, this may mean that the parent may have a legal obligation stay home while the child cannot attend school. Here, employers should carefully consider whether accommodation measures, like teleworking or a modified work schedules, is possible or feasible for working parents.
Moreover, it is possible that the duty to accommodate may also extend to choices made by parents. For example, parents in Canada may choose to have their children homeschooled until the risk of danger of COVID-19 ends. Likewise, some parents in the near future may also choose not to have their children vaccinated against COVID-19 for medical or religious reasons. In both cases, these choices may result in the child not being able to attend school or day care facilities. For example, in Ontario, under the Immunization of School Pupils Act , children may be barred from attending school if they are not immunized. Depending on the facts, the unlawful failure to have one’s child vaccinated can carry a penalty of up to $1,000. The legislation also provides that in the case of an outbreak of an illness or disease, children not vaccinated against the disease may be excluded from school. Parents in Ontario can, however, seek exemptions for limited reasons, including medical, philosophical or religious grounds. Other parts of Canada, such as New Brunswick, have similar legislation.
While the extent of an employer’s obligation to accommodate in these circumstances remains nebulous, it should be noted that the concept of “choice” in the human rights context was recently addressed by the Supreme Court of Canada. The Court held that a formalistic approach to “choice” cannot be used to deny protections against discrimination, stating that “equality looks not only at the choices that are available to individuals, but at “the social and economic environments in which [they] pla[y] out”. As such, employers should be careful not to dismiss a request for accommodation, even where the need for accommodation arises from an employee’s choice, and not only from a legal obligation to care for a child or dependant.
Finally, in some provinces in Canada, front-line or essential workers have access to government-funded day care. Though, the extend to which those options are fully or partially subsidised varies from province to province.
For employers operating in Canada, paying special consideration to child and family care obligations of employees is important – and smart. Providing employees with reasonable and accessible options that take into account childcare obligations throughout the school year and beyond can work to not only to mitigate potential legal risk, but also to retain talent and promote a culture of wellness and reassurance among working parents.