TORONTO —
Parents struggling to balance their jobs and child-care needs during the pandemic may be entitled to workplace accommodations, such as flexible hours and time off, employment lawyers say.

“Employers generally do have an obligation to accommodate employees’ child care obligations in the workplace up to the point of undue hardship,” says Simone Ostrowski, an employment lawyer at Whitten & Lublin in Toronto.

Federal and provincial legislation gives employees across the country the ability to seek accommodations and modifications based on their family status. Accommodations typically include things like flexible work hours, alternating workdays and the ability to work from home, all of which can help parents whose children are doing online learning from home. 

Ontario has extended school closures indefinitely, with Nova Scotia announcing that schools in the Halifax area will close this week amid a surge of COVID-19 cases. Alberta has also closed schools in high-case areas, including Edmonton, Calgary and Fort McMurray. Schools located in the Quebec Metropolitan Community, as well as other high-risk areas, are closed until May 7.

“If a family has a new kid, for example, or children, but even seniors or parents who need care, employees have the right to ask their employers for accommodation within a certain limit to what they can and cannot get,” said Christopher Achkar, employment lawyer and owner of Achkar Law in Toronto. “That could be in the form of starting later, starting earlier, working different times such as Saturdays and Sundays, a variety of accommodations they can ask for, but again within a limit.”

It is the responsibility of both the employee and employer to ensure that the accommodations are reasonable and justified based on the employee’s family circumstances.

“As long as the employee can still do the core duties of the job, but they just need some accommodations, say for timing, then the employer is supposed to work with them to provide that,” said Ostrowski.

“Employees also cannot insist on a particular type of accommodation necessarily. They can make their needs and limitations known but it is ultimately the employer and employee who are supposed to decide together what’s an appropriate accommodation.”

Employees also have the ability to request temporary leaves based on family status.  However, the type of leave they are granted and whether or not it’s paid depends on their employer.

In response to the COVID-19 pandemic, many provinces have implemented emergency leave orders to better support employees who are dealing with COVID-19 related issues. To date, B.C., Alberta, Saskatchewan, Manitoba, New Brunswick, P.E.I, and Newfoundland and Labrador have all issued COVID-9 related unpaid emergency leave programs that allow employees to take leave to support family and children in case of school closures or sickness.

In Ontario, the Infectious Disease Emergency Leave outlines the emergency leave standards for employees who need to take time off because of the pandemic.

However, temporary leaves are not always a beneficial decision for employees, since they are unpaid and can potentially take an employee away from the workplace for an extended period of time.

“Obviously anytime an employee is away from a work place it potentially puts them in a vulnerable position,” says Ostrowski. “This is why we have that [legal] protection. We say that an employee cannot be penalized because they took one of these protected leaves, but we recognize that we need that legal protection in there because someone who’s not in the workplace and who is on a leave is often more vulnerable to being terminated or being left out of workplace decisions.”

Employees who find their employers unwilling to make accommodations based on their family status can contact an employment lawyer, the ministry of labour or file a complaint under human rights legislation in their province or the Canadian Human Rights Act.

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