To say the least, this year's back-to-school frenzy has been a bit different than in previous years. Parents of children who will be returning to school in-person (as opposed to online or remote learning, where available) are not only struggling to find the right pens, markers and notebooks, but are also coping with the possibility that their kids may be sent home throughout the school year for pandemic-related reasons.

Some of this year's back-to-school issues and considerations in Ontario

In response to COVID-19, the provincial government recently released Operational guidance: COVID-19 management in schools (the operational guidance). The operational guidance applies to schools and school boards across Ontario.

Among other things, the operational guidance outlines a myriad of scenarios where a student or staff member can be sent home from school. These scenarios will also apply to childcare centres and before/after school programs that operate within schools.

Consequently, some parents may be scrambling to find a balance between work and childcare obligations throughout the 2020-2021 school year. This necessarily raises questions for Ontario's employers: what happens when employees can't work because their child or dependent has been sent home? The short answer is that employers may have an obligation to accommodate employees with childcare obligations in these circumstances.

To help employers navigate the unique challenges of the 2020 back-to-school period, we have provided a brief summary of the new operational guidance below, as well as a refresher on an employer's family status accommodation obligations.

COVID-19 management in Ontario's schools

The operational guidance requires that anyone showing signs of illness – whether it be the sniffles (unrelated to seasonal allergies, etc.) or a cough – must stay home or will be sent home. Before being allowed back to school, kids and their parents will need to seek medical advice, and may need to be tested for COVID-19, as appropriate or as advised by their medical provider.

If a student is tested for COVID-19, he or she will need to follow the guidance of his or her healthcare provider in terms of isolation and returning to school. All other members of that household who attend school or a childcare centre will also need to seek the advice of their healthcare provider in order to determine when they can go back to school or daycare. Those confirmed not to have COVID-19 can return to school after they have been symptom free for at least 24 hours.

However, if a child or staff member tests positive for COVID-19, the operational guidance states that:

  • Individuals who test positive for COVID-19 should not attend school until they have isolated for 14 days, and are cleared by their local public health unit or healthcare provider. Students sent home from school will be encouraged to continue with remote learning, if they are well enough to do so.
  • Household members and others who live with an individual who has tested positive for COVID-19 (whether it be a parent, child, etc.) should isolate for 14 days.
  • The local public health unit will notify the school of a positive COVID-19 diagnosis and determine if there was a transmission risk to others in the school. Students and staff will be assessed to determine if they are considered to be a high risk of exposure (and therefore require isolation) or if they are considered a low risk of exposure (and can therefore self-monitor for symptoms and return to school).
  • Generally, the staff and students in that individual's cohort will be considered to be a high risk of exposure. The local public health unit will require them to isolate and also recommend they be tested for COVID-19 during their isolation period. However, even individuals who receive a negative test result must still finish their isolation period.
  • If an outbreak happens – meaning two or more cases of COVID-19 that are linked within the same school community – then the local public health unit will determine which measures to take, including which class cohorts may be sent home or if a partial or full school closure is required based on the scope of the outbreak.

Employees of school-aged children may therefore suddenly find themselves without childcare or supervision during the working day. What does this mean for Ontario employers?

Clearly, there are a number of scenarios where students can be sent home from school and/or daycare unexpectedly and promptly, which means that some parents may struggle to balance work and childcare throughout the 2020-2021 school year. Provincially and federally regulated employers operating in Ontario should be aware that, in some cases, the circumstances may trigger obligations under applicable employment or labour standards legislation, including special COVID-19-related leaves, in addition to other protected leaves. This means that even if the employee does not qualify for a special COVID-19-related leave, before denying a leave request, employers should consider whether, under the circumstances, the employee would be entitled to another job-protected leave under applicable legislation.

Unless the legislation or an employer policy or practice requires the leaves to be paid, this time is generally unpaid. Employees may then apply for various government benefits. Generally, employers should also note that employee eligibility for these leaves varies depending on the length of the employee's service, the nature of the leave and other legal considerations. In addition, some leave provisions also impose varying requirements on employees to provide their employers with proper notice and supporting documentation.

When navigating this terrain, employers should also be mindful of any potential human rights implications under provincial or federal laws, which are discussed further below.

Provincially regulated employers

For provincially regulated employers in Ontario, obligations may flow from the Ontario Employment Standards Act, 2000 (ESA) and the Ontario Human Rights Code (the Code). In particular, ESA obligations may include giving employees the option of taking a job-protected, unpaid infectious disease emergency leave when employees cannot work for certain personal reasons relating to COVID-19, including:

  • where an employee is under medical investigation, supervision or treatment for COVID-19
  • where an employee is in quarantine or isolation in specified circumstances
  • where there is an employer concern that an employee may expose other individuals in the workplace to COVID-19
  • where the employee needs to provide care or support to certain family members for a reason related to COVID-19, which likely includes school or daycare directives and closures, or
  • where an employee is directly subject to certain travel-related restrictions.

During the leave, 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.

This leave was introduced early on during the pandemic and applies retroactively to January 25, 2020. Although this leave option was previously set to expire on September 4, 2020, it has just been extended to January 2, 2021. This means that it may apply to employees who need to care for children that have been sent home from school due to the operational guidance measures set out above for at least the first half of the school year.

Apart from the infectious disease emergency leave, employees may also qualify for other job-protected statutory leaves under the ESA, such as family caregiver leave, family medical leave, family responsibility leave, and/or critical illness leave.

In addition, employers have human rights obligations under the Code that may be triggered as kids go back to school this year, specifically in respect of the prohibited of ground of discrimination relating to family status. In Ontario, family status is defined as "being in a parent and child relationship".

Under the Code, employers must accommodate employees experiencing discrimination on the basis of family status up to the point of undue hardship. This means employers may need to offer flexible work arrangements or otherwise provide employees with time off work (which can be paid or unpaid) if the employee's child is sent home from school and he or she is unable to make alterative childcare arrangements. That being said, it is important to note that the extent of an employer's accommodation obligations and what constitutes undue hardship will require a fact-specific analysis of each employee's particular circumstances.

Federally regulated employers

For federally regulated employers operating within Ontario, obligations may arise under the Canada Labour Code (the federal Code), and the Canadian Human Rights Act (CHRA).

Under the federal Code, employees working in federally regulated workplaces now are entitled to up to 28 weeks of unpaid, job-protected leave if they are unable or unavailable to work due to COVID-19, which includes reasons related to family-related responsibilities related to childcare. On October 1, 2020, this leave is expected to be repealed, unless otherwise indicated by the federal government's Labour Program.

As with provincial employees, federally regulated employees may also be entitled to other protected leaves, paid or unpaid, under the federal Code such as personal leave, medical leave, compassionate care leave and/or leave related to critical illness.

Finally, regarding human rights, federally regulated employees enjoy protections under the CHRA, which also prohibits discrimination on the basis of family status. While the CHRA does not define this term, it generally includes situations where a person's legal responsibility to provide care is triggered or where an individual must provide care to a family member. Similarly to the provincially regulated sphere, employers would be well served to carefully consider what measures can reasonably be taken to accommodate employees who may be entitled to protections under human rights legislation this school year.

In-home schooling and remote learning

In Ontario, parents this year have the choice to send their children back to the physical classroom, or allow their children to remain at home and complete their studies from a distance and online. Some parents may also choose to home school their children this year. For many employers, this may raise a necessary question: can employers' leave- and human rights-related obligations be triggered if parents choose not to send a child to back to the physical class space?

Generally speaking, statutory leave and human rights entitlements related to family status issues do not protect against an individual's personal preference or comfort. In other words, should employees argue that leave or an accommodation is legally required because of their personal preferences to keep a child at home this year, some may argue that some of employers' above-discussed employment standards or human rights obligations should not be triggered absent extraordinary circumstances.

That being said, the lines between what is considered a "personal preference" and an "obligation" under law can often be blurred. For this reason, employers would be prudent not to automatically dismiss a request for accommodation as a matter of an employee's personal preference, without engaging in the procedural aspects of the duty to accommodate. Indeed, as COVID-19 continues to push for the implementation of new and innovative ways to learn and interact virtually and at a distance, it remains to be seen how this pandemic will impact the law in this area, and shape (or reshape) the legal considerations related to family-status-based accommodation in Ontario's workplaces.

Take-aways

Employers should be aware of the potential impact that the uncertainties of the 2020-2021 school year may have on their workforce. To mitigate possible risks in this area, prudent employers would strive to implement procedures specifically geared to respond to sudden changes in an employee's childcare obligations, and ensuring that those procedures are in line with the rights and obligations set out under applicable employment/labour standards and human rights legislation. As always, employers should seek legal advice should any specific questions arise regarding their employment/labour standards and human rights obligations in all the circumstances

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