The Ontario government has allowed Toronto-area childcare centres to reopen from the COVID-19 pandemic shutdown on June 12, 2020. However, these centres are not to operate at full capacity due to physical distancing rules in order to minimize the spread of coronavirus. Schools have also been closed since March 2020. Overnight camps are not allowed in the Province of Ontario. Day camps are allowed to accept children at reduced capacities and with an increase in health and safety protocols. However, a large number of those day camps are not operational due to those restrictions. The bottom line is that not all parents have the ability to place their child in a childcare centres or camps. They may also not have access to home daycare or a nanny.
Despite these childcare concerns, employees are starting to feel the pressure to return to work as the economy is slowly but surely opening up and employers are understandably recalling their employees to return to the workplace in greater numbers. Parents (particularly women, single parents, the poor and the marginalized) are starting to worry about what will happen if their employer recalls them back to work but they do not have appropriate childcare in place.
This blog will hopefully put some of these concerns to rest and serve as a quick reminder to employers about the requirement to accommodate based on family status. It will also remind employees of a reciprocal obligation to participate in the accommodation process and agree to appropriate (although oftentimes less than ideal) arrangements with the employer.
It is contrary to Ontario’s human rights legislation to discriminate based on family status. Further, the Ontario government has enacted certain legislation that sets out that the employee’s job is protected if they are unable to work due to COVID-19 because they were unable to find appropriate childcare.
Therefore, if the employee cannot work because they do not have appropriate childcare, the employer cannot fire them for that reason. The employer must provide to the employee a protected leave in that situation so that the employee may look after their child without fear that they will be dismissed from their job. That means that the employee will be able to take time off work in order to look after their child but then would return to work at the end of the leave when they are able to find childcare. However, the employer does not have to pay the employee during that leave. Moreover, if childcare becomes available the employee cannot indefinitely delay their return to work date and failure to return to work at a reasonable time could amount to job abandonment.
We would suggest that perhaps it might be prudent for the employer to offer the employee alternatives in order so that a full leave may be avoided by the employee. For instance, offering the employee a work-from-home arrangement or differing work hours may be enough so that the employee may be able to work but still look after their child. Such arrangements has been relatively common during the course of this pandemic.