Strike action by Ontario’s secondary and elementary teachers has left some parents scrambling to find childcare over the past few months and is set to resume after the March break if a deal with the provincial government is not reached. Therefore, this is a good time to remind employers that they must be mindful of their responsibility to accommodate employees as much as reasonably possible. That will not only promote workplace harmony but ensures compliance with Ontario’s Human Rights Code, 1990 (“Code”).
The Ontario Employment Standards Act, 2000 (“ESA”) states that employees who have worked for a company for at least two consecutive weeks can take up to three unpaid but protected family responsibility leave days each calendar year. These unpaid days help employees faced with an illness, injury or an urgent matter relating to a family member to take protected leave. A childcare emergency prompted by a strike day arguably falls into this category.
Some employers may feel that providing this accommodation would result in undue hardship to the company and that it should be up to the employee to make alternative childcare arrangements while coming to work. However, it is recommended all employers find ways to accommodate those affected by the strike action, possibly through flexible work hour scheduling, unpaid leave or work-from-home arrangements.
Employers must consider each request for accommodation on an individual basis and any remedy has to be tailored to the type of work that is being done, since an office worker will have more job flexibility than a shift worker in an auto plant, for example. The size of the company and the number of employees requesting accommodation strikes are other factors that have to be considered.
Since people who take this leave are entitled to the same rights as those who take pregnancy or parental leave, employers cannot threaten, fire or penalize an employee who takes or plans on taking a family responsibility leave. While the above rules apply to the majority of workplaces, certain professionals – such as health practitioners — may not be eligible for family responsibility leave under the ESA, as their absence may constitute an act of professional misconduct or a dereliction of professional duty. However, in addition to the ESA, Ontario employers are also reminded of their obligation to accommodate employees to the point of undue hardship under the Code. This means that they have both a procedural obligation to make reasonable inquiries into accommodation opportunities as well as a substantive duty to accommodate employees under the “family status” ground.
Employers can also remind staff members that the Ontario government is providing financial support of up to $60 per day for parents during this strike. Click here for more information and eligibility criteria.
At Zeilikman Law, we are strictly employment and labour lawyers. We help employees and employers on a daily basis with their workplace issues across the Greater Toronto Area, Vaughan, North York, Richmond Hill, Aurora, Newmarket and numerous other places in Ontario. Call us today at (905) 417-2227 to schedule a confidential consultation with one of our employment lawyers at our offices.
