Canadian HR Reporter

44 www.hrreporter.com S P O N S O R E D responsibility for the child, as opposed to a personal choice. 3. The employee had first made reasonable efforts to self-accommodate. 4. The impugned workplace rule interfered with the fulfilment of the childcare obligation in a way that was more than trivial or insubstantial. This test applies to any federally regulated employer. Ontario and Alberta have rejected this approach in favour of a test that does not directly distinguish between an employee's needs and wants (preferences), does not require the employee to first self-accommodate and does not require the workplace rule to have interfered in more than a trivial or insubstantial way. In Ontario and Alberta, an employee must only demonstrate three things: 1. Membership in a protected group (in this case, family status). 2. Adverse treatment. 3. The protected ground of discrimination was a factor in the adverse treatment. Arguably, this is an easier standard to meet than the standard for federally regulated employees. However, in Ontario, adjudicators have addressed this by acknowledging that not all adverse treatment constitutes discrimination and the treatment must have a "negative impact" that results "in real disadvantage to the parent/ child relationship and the responsibilities that legislation do not require an employer to agree to a work-from-home arrangement or any other form of paid accommodation. Further, if schools and daycares reopen, the employee will no longer be entitled to COVID-19 leave, unless the legislation is amended. As such, a request for a continued leave of absence once schools, daycares and camps re-open or for a work-from-home arrangement while schools, daycares and camps remain closed should be addressed as a potential family status accommodation request under human rights legislation. Step 2: Determine if the employee is entitled to accommodation based on family status An employer need only consider a request for accommodation on the basis of family status if the employee has been able to successfully establish a prima facie case of discrimination. The test for establishing prima facie discrimination varies among Canadian jurisdictions. In 2014, the Federal Court of Appeal held that, in order to successfully claim discrimination on the basis of family status, an employee had to demonstrate four things: 1. The child was under the employee's care and supervision. 2. The childcare obligation engaged a legal As provincial economies reopen and many employees return to the physical workplace, the issue of childcare remains as many schools and daycares are closed or operating at reduced capacity. Priya Sarin and Matthew Badrov of Sherrard Kuzz look at employer obligations to accommodate requests for time off or work-from-home arrangements COVID-19: LEGAL OBLIGATIONS AROUND CHILDCARE ACCOMMODATION A worker who has the option of sending a child to school or daycare during work hours and elects not to do so may have difficulty successfully establishing prima facie discrimination. the Canadian economy "shut down" in March 2020, so, too, did schools and daycares across the country. As a result, many employees found themselves working from home and providing childcare at the same time. As provincial economies reopen and employers encourage employees to return to the physical workplace, the issue of childcare remains as schools, daycares and camps are closed or operating at reduced capacity. Even in jurisdictions in which daycare or camps have reopened or will reopen imminently, some parents may wish to keep their children at home due to fear of exposure to COVID-19. In these circumstances, the question we have been asked is: What are an employer's legal obligations to accommodate a request for time off, to continue a work-from-home arrangement or to agree to some other arrangement? Step 1: Determine if the employee's request qualifies for a statutory leave At the outset of the COVID-19 pandemic, most Canadian jurisdictions passed legislation to provide an unpaid job-protected leave for an employee who was unable to work for reasons related to COVID-19. This included taking time off to care for a child who was at home due to a school or daycare closure under an emergency order. An employee who requests COVID-19 leave is generally entitled to the same protections available under other statutor y leaves, which may include continued recognition of seniority during the leave, continued benefits and the right to be reinstated to the employee's position or a comparable position if it no longer exists. The COVID-19 leave provisions in the existing Matthew Badrov Lawyer at Sherrard Kuzz Priya Sarin Lawyer at Sherrard Kuzz E M P L O Y M E N T L AW WHEN

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