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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
April 17, 2020© GOLDBLATT PARTNERS 2
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
April 17, 2020© GOLDBLATT PARTNERS 3
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
April 17, 2020© GOLDBLATT PARTNERS 4
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)
April 17, 2020© GOLDBLATT PARTNERS 5
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
April 17, 2020© GOLDBLATT PARTNERS 6
The Reality of Working from Home…
April 17, 2020© GOLDBLATT PARTNERS 7
Substantive Equality
April 17, 2020© GOLDBLATT PARTNERS 8
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
April 17, 2020© GOLDBLATT PARTNERS 9
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.
April 17, 2020© GOLDBLATT PARTNERS 10
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.
April 17, 2020© GOLDBLATT PARTNERS 11
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!
April 17, 2020© GOLDBLATT PARTNERS 12
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
April 17, 2020© GOLDBLATT PARTNERS 13
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
April 17, 2020© GOLDBLATT PARTNERS 14
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
April 17, 2020© GOLDBLATT PARTNERS 15
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
April 17, 2020© GOLDBLATT PARTNERS 16
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
April 17, 2020© GOLDBLATT PARTNERS 17
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
April 17, 2020© GOLDBLATT PARTNERS 18
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
April 17, 2020© GOLDBLATT PARTNERS 19
April 17, 2020© GOLDBLATT PARTNERS 20
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
April 17, 2020© GOLDBLATT PARTNERS 21
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
April 17, 2020© GOLDBLATT PARTNERS 22
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”?
April 17, 2020© GOLDBLATT PARTNERS 23
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
April 17, 2020© GOLDBLATT PARTNERS 24
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
April 17, 2020© GOLDBLATT PARTNERS 25
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
April 17, 2020© GOLDBLATT PARTNERS 26
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?
April 17, 2020© GOLDBLATT PARTNERS 27
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
April 17, 2020© GOLDBLATT PARTNERS 28
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
April 17, 2020© GOLDBLATT PARTNERS 29
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/
April 17, 2020© GOLDBLATT PARTNERS 30
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
April 17, 2020© GOLDBLATT PARTNERS 31
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
April 17, 2020© GOLDBLATT PARTNERS 32
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
April 17, 2020© GOLDBLATT PARTNERS 33
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
April 17, 2020© GOLDBLATT PARTNERS 34
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
April 17, 2020© GOLDBLATT PARTNERS 35
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
April 17, 2020© GOLDBLATT PARTNERS 36
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
April 17, 2020© GOLDBLATT PARTNERS 37
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
April 17, 2020© GOLDBLATT PARTNERS 38
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
April 17, 2020© GOLDBLATT PARTNERS 39
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
April 17, 2020© GOLDBLATT PARTNERS 40
Family Leave Options: Ontario
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
April 17, 2020© GOLDBLATT PARTNERS 41
Family Leave Options: Ontario
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
April 17, 2020© GOLDBLATT PARTNERS 42
Family Leave Options: Ontario
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
April 17, 2020© GOLDBLATT PARTNERS 43
Family Leave Options: Ontario
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
April 17, 2020© GOLDBLATT PARTNERS 44
Family Leave Options: Ontario
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
April 17, 2020© GOLDBLATT PARTNERS 45
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
April 17, 2020© GOLDBLATT PARTNERS 46
Family Leave Options: Federal
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
April 17, 2020© GOLDBLATT PARTNERS 47
Family Leave Options: Federal
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
April 17, 2020© GOLDBLATT PARTNERS 48
Comparison of Leaves
April 17, 2020© GOLDBLATT PARTNERS 49
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.
Family Leave Options: Federal
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
April 17, 2020© GOLDBLATT PARTNERS 50
Family Leave Options: Federal
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
April 17, 2020© GOLDBLATT PARTNERS 51
Which Leave Should I Choose?
April 17, 2020© GOLDBLATT PARTNERS 52
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
April 17, 2020© GOLDBLATT PARTNERS 53
Agenda
Family Status Accommodation
Accommodation issues for employees working from home
Accommodation issues for frontline workers
Leaves and benefits available to workers
Q & A
April 17, 2020© GOLDBLATT PARTNERS 54