accommodating workers and their families during the covid ... · lack of childcare options not only...

Accommodating Workers and their Families During

the COVID-19 Pandemic

Kelly Doctor, Heather Ann McConnell & Mary-Elizabeth Dill

Goldblatt Partners LLP

April 17, 2020© GOLDBLATT PARTNERS 1

Agenda

Family Status Accommodation

Accommodation issues for employees working from home

Accommodation issues for employees in the workplace

Family leaves and benefits available to workers

Q & A


Agenda





Q & A


Impact of COVID-19 on Family Status

Accommodation

▪ Large # of employees needing accommodation▪ Challenges of individualized assessment when a

significant # of workers are now caring for school aged kids

▪ Lack of childcare options▪ Not only are schools and daycares closed, but the

usual backups may not be reasonable

▪ Uncertainty▪ Businesses are facing economic precarity

▪ Changing public heath directives and restrictions

▪ We don’t know how long this is going to continue


Definition of “Family Status”

▪ Ontario Human Rights Code: “the status of being

in a parent and child relationship”

▪ No definition in the Canadian Human Rights Act

▪ Spouses, partners, etc. are protected under the

ground of “marital status” (marriage is not

necessary)


Discrimination

What is Discrimination?▪ Unequal or different treatment or harassment that is

based on a “protected ground.”

Types of Discrimination▪ Direct Discrimination

▪ E.g. Employees with kids are laid off first▪ Indirect/Adverse Effect Discrimination

▪ E.g. Employees working from home must perform their work from 9-5


The Reality of Working from Home…


Substantive Equality


Source: Interaction Institute for Social Change (interactioninstitute.org)Artist: Angus Maguire (madewithangus.com.)

What is the Goal of Accommodation?

“[T]he goal of accommodation is to ensure that an

employee who is able to work can do so…[and] to

ensure that persons who are otherwise fit to work

are not unfairly excluded where working conditions

can be adjusted without undue hardship.”

Hydro-Québec, [2008] 2 SCR 561


Canada (Attorney General) v. Johnstone, 2014 FCA 110

▪ A prima facie case of discrimination is made out in a case involving childcare responsibilities, where:

1. A child is under the complainant’s care;

2. The obligation engages the complainant’s “legal responsibilities” for the child (as opposed to personal choice);

3. Reasonable efforts have been made to find reasonable alternative solutions; and

4. The rule interferes in a manner that is more than trivial with the fulfillment of the childcare obligation.


How Does an Employee Establish a Need for

Accommodation?

How Does an Employee Establish a Need for

Accommodation?

Misetich v. Value Village Stores Inc., 2016 HRTO 1229

▪ The HRTO said the test for discrimination based on family status isn’t different than any other protected ground, but appeared to also consider:

▪ The negative impact must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work.

▪ The analysis may include consideration of the other supports available (or not) to the applicant.


Availability of Other Supports During the

Pandemic

▪ Emergency orders and public health directives limit available supports▪ Any person who has entered Canada in the last 14 days

must self-isolate

▪ Ontario has banned gatherings of more than 5 people or more (except within the same household)

▪ Ontario’s Chief Medical Officer of Health has recommended that all people over 70 self-isolate

▪ Quebec has limited entry into the province

▪ Small children do not respect physical distancing!


Reasonable Not Perfect Accommodation

“An employee cannot expect a perfect solution. If

a proposal for accommodation that is reasonable

in all the circumstances is refused by the

employee, the employer’s duty to accommodate

is discharged.”

Central Okanagan School District v. Renaud, [1992] 2 S.C.R. 970


Undue Hardship

▪ Once an employee has established a prima facie case of discrimination, the burden shifts to the employer to demonstrate that:

▪ The discrimination is the result of a bona fide occupational requirement (BFOR)

▪ The discrimination cannot be accommodated without undue hardship


Undue Hardship Relevant Factors

The point of undue hardship is different from employer to employer and job to job

These are the only relevant factors:

▪ Financial cost

▪ Health and safety

▪ Outside sources of funding (Ontario)

But, there may also be a need to balance competing rights


The Procedural Duty to Accommodate

▪ If the employer fails to properly turn their mind to

whether accommodation is possible they may

fail in the procedural duty, even if substantive

accommodation was not possible

▪ Note: Under the CHRA, there is no procedural

duty to accommodate (FCA, Cruden), but this

has not typically been material


Changing Circumstances

▪ The point of undue hardship may change over time

▪ The employee’s circumstances can also change

▪ The number of employees requiring accommodations increase

▪ Public health directives can change

▪ Accommodations can be modified in response to changing circumstances


Steps an Employee Should Take when Seeking

Accommodation

▪ Promptly tell the employer their accommodation need

▪ Show that there is a "genuine obligation to provide care" as opposed to a "personal choice"

▪ Show that other realistic alternatives have been explored but will not work

▪ Participate in discussions and be open to reasonable arrangements even if they are not the employee's preferred solution

▪ Construct a support system comprised of varying caregiving options (if possible)

▪ Practice effective time management (if possible)

▪ Be open to adjusting a previously agreed upon accommodation solution in the event that circumstances change

Modified from the Canadian Human Rights Commission, A Guide to Balancing Work and Caregiving Obligations –Collaborative Approaches for a Supportive and Well-Performing Workplace” http://www.chrc-ccdp.gc.ca/sites/default/files/a_guide_to_balancing_work.pdf


http://www.chrc-ccdp.gc.ca/sites/default/files/a_guide_to_balancing_work.pdf

Agenda





Q & A


Availability of Other Options

▪ Employees need to explore what other options

are available

▪ Can they work out “shifts” with another parent?

▪ Can they bring in an outside caregiver?

▪ Can they trust an older child to babysit?

▪ These options may not be reasonable due to

public health directives or individual health

concerns


Accommodations for Employees Working from

Home

▪ Technological or logistical support

▪ Flexibility in working hours

▪ Modified working hours

▪ Ability to take longer breaks

▪ Ability to take unpredictable breaks

▪ Modified productivity expectations

▪ Extended deadlines

▪ Reduced workload


After the Pandemic

▪ Things may return to “normal” in phases

▪ The pandemic is going to shift how we look at

working from home

▪ Can accommodations continue when things

have returned to “normal”?


Agenda





Q & A


Accommodating Childcare Responsibilities

▪ Before requesting accommodation, examine

whether other supports are available:

▪ Is there another available shift?

▪ Is there another caregiver available?

▪ Is the employee eligible for “Emergency Childcare”?

▪ Some of these options may not be reasonable

due to public health or individual health

concerns


Emergency Childcare

▪ The Ontario gov’t has allowed some daycares to serve frontline and health care staff

▪ The following people are eligible for emergency childcare:

▪ Regulated and unregulated health care providers; for example, doctors, nurses, paramedics, personal support workers

▪ Police officers and members of a police force other than a police officer, as defined in the Police Services Act

▪ Firefighters and those engaged in providing fire protection services or employed in a fire department, as defined under section 1 of the Fire Protection and Prevention Act, 1997

▪ Coroners▪ Those working in correctional institutions, including those working in the Institutional Services Division or

Community Services Division, and other justice-related settings (as determined by municipalities), including those employed in a place of secure custody or a place of secure temporary detention

▪ Animal welfare inspectors▪ Employees of Compass Group Canada Ltd. who work at or provide services in relation to the Cook Chill

Food Production Centre▪ Individuals employed in the Direct Operated Facilities Branch of the Ministry of Children, Community and

Social Services (MCCSS)▪ Those performing work that is essential to the delivery of core services in their communities, as determined

by the municipality or First Nation▪ Those working in emergency childcare settings

▪ However, for some employees, this may not be a reasonable option


Accommodating Childcare Responsibilities

▪ Can the worker's job be done remotely?

▪ Can work duties be realigned to permit an

employee to work from home?

▪ Can a schedule be modified to allow the

employee to work when they have childcare

available to them?


Accommodating Vulnerable Family Members

▪ Some employees may live with or care for family

members who are at high risk if they contract

COVID-19

▪ e.g. elderly, immunosuppressed /compromised,

medically vulnerable family members

▪ Employers have a duty to accommodate these

employees to the point of undue hardship


Protecting Family Members from Risk

▪ How can employers protect workers against infecting vulnerable family members?▪ Physical distancing between workers and between

workers and the public

▪ Personal protective equipment

▪ Off-peak commuting

▪ Paid parking to avoid public transit

▪ Removal from higher-risk duties

▪ Alternate housing


Work Refusals

▪ In some situations a work refusal under the

Occupational Health and Safety Act may be

appropriate

▪ For more info:

▪ Attend next week’s webinar on Protecting Worker Health

and Safety During the Pandemic (April 23 at 10 a.m.)

▪ Review of blog post on refusing unsafe work:

https://goldblattpartners.com/blog/when-and-how-can-i-

refuse-unsafe-work/


https://goldblattpartners.com/blog/when-and-how-can-i-refuse-unsafe-work/

Challenges Employees May Face

▪ Employers may refuse individual

assessments due to # of workers requiring

accommodation

▪ Where multiple employees require

accommodation there may be more limited

options

▪ Not enough PPE to protect workers

▪ Emergency powers


Emergency Management and Civil Protection Act

▪ Ontario government invoked emergency powers

▪ Effective March 17, 2020 to May 12, 2020 (currently)

▪ Allows the government to make orders that prevail

over any statute, regulation, rule, bylaw or other order

or instrument of a legislative nature unless

other instrument states that it applies notwithstanding

the EMCPA

▪ Orders are subject to the Charter


Emergency Powers and the Human Rights Code

▪ The OHRC is quasi constitutional legislation and

cannot be set aside by an emergency order

▪ Section 47(2) confirms that where a provision in an

Act or regulation purports to require or authorize

conduct that is a contravention of Part I, this Act

applies and prevails unless the Act or regulation

specifically provides that it is to apply despite this Act


EMCPA Orders – Impacted Workplaces

▪ Hospitals & related health service providers

▪ Long-term care homes

▪ Boards of health

▪ Retirement homes

▪ Service agencies for adults with developmental disabilities

▪ Water systems & sewage systems operators

▪ The Ministry of Transportation


EMCPA Orders – Workplace Management

Powers include:

▪ Redeploying staff between different work sites

▪ Having non-BU workers do BU work (including contractors and volunteers)

▪ Changing schedules & cancelling leaves

▪ Collecting information from EEs

▪ Suspending the grievance procedure with respect to matters that are referred to in the order


Emergency Orders and Human Rights

▪ Any emergency order must promote the public

good and minimize intrusiveness

▪ However, the context of the pandemic will impact

the analysis of what is “reasonable” in the

circumstances

▪ Available alternatives

▪ Undue hardship


A Role for Unions

▪ Advocate for members▪ Push for an individualized assessment

▪ Purposive interpretation of existing leaves and benefits

▪ File grievances & expedite if possible

▪ Educate members▪ Explain the employee’s role in the accommodation process

▪ Organize and keep the evidence▪ Help employees compile necessary evidence

▪ Document requests for accommodation and employer responses


In a Nutshell…

▪ An employer must accommodate an employee who has care-giving responsibilities up to the point of undue hardship

▪ These care-giving responsibilities could include situations where another family member is ill or in self-isolation, or where their child’s school is closed due to COVID-19

▪ Potential accommodations can include allowing employees to work from home where feasible, permitting employees to work alternate hours, allowing employees to take leaves from work, or other flexible options

▪ Unions have a role to play in negotiating collective accommodations where practical and feasible, and in helping employees understand their rights and the need to document and maintain evidence

▪ Human rights obligations are not displaced by emergency orders, but they may impact how those rights are understood and applied


Agenda





Q & A


Family Leave Options: Ontario

If I need to care of a family member, what options

do I have to take time off work?

1. Designated Infectious Disease Leave

2. Family Medical Leave

3. Family Caregiver Leave

4. Critical Illness Leave

5. Family Responsibility Leave



Designated infectious disease leave

▪ New unpaid leave

▪ No maximum number of days

▪ Can take unpaid leave of absence for as long as you are not able to perform your employment duties for a specified reason related to COVID-19 (and as long as COVID-19 remains a "designated infectious disease")

▪ Must advise your employer you are taking this leave

▪ The leave is available in 6 situations related to COVID-19

▪ One of those situations is where you are providing care or support to one of several specified family members for a matter related to the disease, including school closures



Designated infectious disease leave, cont'd

▪ Specified family members include:

▪ Your spouse

▪ Your or your spouse's child, sibling, parent, grandparent, uncle or aunt, nephew or niece

▪ A person who considers you to be like a family member

▪ As with other leaves, ER may require EE to provide evidence that is reasonable in the circumstances to show entitlement, but…

▪ Evidence can only be demanded “at a time that is reasonable in the circumstances”

▪ ER cannot require a medical certificate/doctor’s note as evidence



Designated infectious disease leave, cont'd

▪ The leave entitlement applies retroactively to January

25, 2020

▪ Any worker who was not working as of that date and falls

under one of the six categories is deemed to have been

taking this leave – so anti-reprisal rules would apply



Family medical leave

▪ Unpaid leave up to 28 weeks

▪ You may be entitled to this leave if you are providing care or support to a specified family member and you have a doctor's note specifying that that family member has a serious medical condition with a significant risk of death within a period of 26 weeks or less

▪ Specified family members include: your spouse; your or your spouse's child, parent, sibling, aunt or uncle, nephew or niece, grandparent; person who considers you to be like a family member

Family caregiver leave

▪ Unpaid leave up to 8 weeks

▪ You may be entitled to this leave if you are providing care or support to a specified family member and if you have a doctor's note specifying that that family member has a serious medical condition

▪ Specified family members include: your spouse; your sibling; your or your spouse's parent, child, grandparent; a relative who is dependent on you for care or assistance



Critical illness leave

▪ Unpaid leave up to 37 weeks for critically ill minor child or up to 17 weeks for critically ill adult

▪ You may be entitled to this leave if you are providing care or support to a critically ill minor child or adult and you have a doctor's note that states that that family member is critically ill and requires care or support and that sets out the period during which the family member requires that care or support

▪ Available to EEs who have been employed by the ER for at least 6 consecutive months

▪ If your family member passes away, the leave ends the last day of the week in which they die

▪ Specified family members include: your spouse; your or your spouse's child, parent, sibling, aunt or uncle, nephew or niece, grandparent; a person who considers you to be like a family member

Family responsibility leave

▪ Unpaid leave up to 3 days each year

▪ You may be entitled to this leave if you need to tend to the illness, injury, medical emergency or other urgent matter relating to your spouse; your sibling; your or your spouse's parent, child or grandparent; or a relative of yours who is dependent on you for care or assistance

▪ ER may require you to provide "evidence that is reasonable in the circumstances" to justify this

leave


Family Leave Options: Federal

If I need to care of a family member, what options

do I have to take time off work?

1. COVID-19 Leave

2. Personal Leave

3. Compassionate Care Leave

4. Leave Related to Critical Illness



COVID-19 Leave

▪ Canada Labour Code amended to provide a

specific unpaid leave solely for COVID-19

▪ Applies to workers who are “unable or

unavailable to work for reasons related to”

COVID-19

▪ No further list of pre-conditions



COVID-19 Leave

▪ Leave has a maximum duration of 16 weeks, but may be varied by regulation

▪ Employer may not demand a medical certificate or note, but may require a written declaration from EE

▪ Available as of March 25, 2020 - it is not retroactive

▪ Legislation automatically repeals on October 1st

▪ On October 1, 2020, COVID-19 leave is replaced with a general Quarantine Leave that is not set to expire - provides up to 16 weeks of leave for a person under quarantine


Comparison of Leaves


Provincial Leave Federal Leave

Entitlement 6 specific situations related to any designated disease

Any reason related to COVID-19

Max Duration None (so long as entitlement continues to exist)

16 weeks

Start date January 25, 2020 March 25, 2020

End date Permanent enactment October 1, 2020

Evidence Anything – other than medical note – that is reasonable in the circumstances; to be provided at a reasonable time

Written declaration from employee. No medical note may be demanded.


Personal Leave

▪ Unpaid leave up to 5 days

▪ Can take this leave for various reasons, including if you are:▪ Carrying out responsibilities related to the health or care of any of your family members

▪ Carrying out responsibilities related to the education of any family member who is under 18

▪ Addressing any urgent matter concerning your family members

▪ If you've been employed for 3 consecutive months with the employer, you are entitled to the first 3 days of the leave with pay

▪ ER may request documentation to support reasons for the leave

Compassionate Care Leave

▪ Unpaid leave up to 28 weeks to provide care or support to a family member with a serious medical condition and with a significant risk of death within 26 weeks

▪ Must provide certificate from health care practitioner stating that the family member has a serious medical condition with a significant risk of death within 26 weeks

▪ Leave ends the last day of the week the family member dies

▪ If multiple caregivers take a Compassionate Care Leave with respect to the same person, they must split the 28 weeks between them



Leave Related to Critical Illness

▪ Up to 37 weeks to care for or support a critically ill child or up to 17

weeks to care for or support a critically ill adult (both must be family

members)

▪ Requirement for a medical certificate that states that the family

member is critically ill and requires care or support and that sets

out the period during which the family member requires that care or

support

▪ Leave ends the last day of the week that the family member dies


Which Leave Should I Choose?


Pay/Benefit Options While on Unpaid Leave

1. Look at your Collective Agreement!

▪ Sick leave, compassionate leave, personal days, etc.

2. Canada Emergency Response Benefit (CERB)

3. EI Benefits


Agenda



Accommodation issues for frontline workers

Leaves and benefits available to workers

Q & A


accommodating workers and their families during the covid ... · lack of childcare options not only...

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