Though schools in Canada have reopened this Fall, not all parents are sending their children to school due to COVID-19. Employees who do not have childcare options may refuse to return to work as they need to be home to look after their kids.
This puts employers in a tough spot. You need your entire workforce back as you resume operations, but you also want to be supportive of your staff during this difficult time.
What are my duties as an employer?
Under human rights legislation, an employer has a duty to accommodate employees to the point of undue hardship. It applies to needs that relate to grounds of discrimination (which include ground of family status). So you must accommodate an employee who has caregiving responsibilities up to the point of undue hardship.
Undue hardship is when accommodating a worker’s needs is not possible as it is too expensive or could create health or safety risks.
You cannot fire an employee for refusing to return to work because they have to take care of their kids. If you do, you’d be exposing yourself to litigation.
What rights do employees have?
Most provinces have amended their employment standards legislation to include a leave of absence due to COVID-19 related reasons. Employees who have children but no childcare support are legally entitled to take an unpaid but job-protected leave from work.
Ontario
The Ontario government amended the Employment Standards Act to provide for an Infectious Disease Emergency Leave. It includes a provision for a leave of absence if the employee needs to look after their child whose school or daycare was closed due to COVID-19. It is also applicable if the employee did not send their child to school or daycare out of fear of exposure to COVID-19.
There is no specified limit to the number of days a worker can be on Infectious Disease Emergency Leave. Employees can avail of the leave for as long as the reason for taking the leave exists. The right to this leave also ends when the infectious disease stops being a designated infectious disease
Alberta
The province made a temporary change to its employment standards rules. The five-day Personal and Family Responsibility Leave has been extended to “a period of time that is necessary” for the worker to fulfil their responsibility of caregiving.
A medical note is not required to go on leave, and an employee can take this leave more than once. This temporary leave is available until August 14, 2021.
British Columbia
Employees in BC can use the COVID-19 related leave if they need to take care of their child. The length of this leave is indefinite — “for as long as a circumstance” for taking it exists.
How to best approach such work refusals?
There is no standardized solution in this case as each employee’s circumstances will be different. Talk to your employees about their needs and evaluate your options in each case. While you want what is best for your business, you don’t want to lose experienced and qualified staff due to a temporary crisis. Though a COVID-19 related leave without pay is available to employees, it should be the last option.
Try and find a solution that works for both you and your employee. For example, you could accommodate your employee by allowing them to work from home or work flexible hours. If the nature of their work requires being present in the workplace, you could offer them alternative work that can be done remotely. They could also work alternate shifts in case a part-time caregiver/sitter is available to them.
If you have a number of parents on your staff who are without childcare options, you may want to consider providing daycare at the office. Both parties must be flexible and willing to work together to find a mutually agreeable solution.
Do you need help managing work refusals due to childcare responsibility ?
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