Back to School: Navigating an Employer’s Duty to Accommodate Childcare Obligations in the Era of COVID-19

Manitoba students returned to school this week, the majority donning masks as they entered schools that have implemented a variety of measures in accordance with safety protocols developed by the province and school divisions in response to the pandemic.

However, not all students have returned; some due to medical conditions that may increase their risk in relation to the virus, and others due to parental decisions to homeschool. In addition, as the school year and flu season unfold, we can anticipate that there will be increased student absenteeism.

Accordingly, employers may experience an increase in requests from employees for leaves of absence due to childcare obligations.

The Human Rights Code (Manitoba) (the “Code”) protects parents and guardians from discrimination in employment on the basis of “family status”. As part of that protection, employers are required to accommodate an employee’s family status obligations up to the point of undue hardship. Generally, an employer’s duty to accommodate will be triggered where:

  • a child is under the employee’s care and supervision;
  • the childcare obligation at issue engages the employee’s legal responsibility for that child, as opposed to a personal choice; and
  • the employee has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessible.

Where an employee is able to establish the above, an employer’s duty to accommodate its employee’s childcare obligation to the point of undue hardship would likely be triggered.

Employers who receive a request respecting childcare obligations should engage in discussions with the employee to better understand the basis of their request, including why the child is not attending school or daycare, what other alternative care options the employee considered that would allow them to attend work, and why those alternative options are not feasible for the employee.

If an employee establishes a need for accommodation, the form of accommodation provided by the employer does not need to be specifically what the employee requested. The accommodation that is offered however, must be reasonable based on the employer’s requirements and the employee’s family status needs. Reasonable accommodation can take many forms, including options such as remote work plans or scheduling changes. Each accommodation arrangement must be carefully considered based on the operational requirements of the workplace and the individual employee’s personal circumstances.

If an employee requests an accommodation based on a personal choice (not based on a family related obligation) which does not engage the employer’s duty to accommodate, employers may still wish to consider exercising flexibility where practical due to the varied impacts of COVID-19 on employees.

Where an employer provides alternate arrangements to an employee, the details of the arrangement should be clearly communicated in writing including the anticipated duration of the arrangement, and the employer’s expectations of the employee. This applies both where the arrangement is a form of accommodation due to family status and where the employer is facilitating an employee’s personal choice.

We note that employees may be eligible for a Public Health Emergency Leave under The Employment Standards Code (Manitoba) to care for their children who cannot attend school or daycare on the basis of legitimate medical concerns (as opposed to a personal choice). More information pertaining to the Public Health Emergency Leave can be found in our “Manitoba Announces New Public Health Emergency Leave” blog.

We further note that subject to pending new legislation, Employment and Social Development Canada has announced that it will be making changes to the current employment insurance program to include the Canada Recovery Caregiving Benefit. This benefit would provide $500 per week per household for up to 26 weeks for eligible Canadians who are unable to work because they must care for a child or dependent who is not attending school, daycare, or other facilities under the advice of a medical professional due to being at high risk of contracting COVID-19.

Given that the law with respect to the accommodation of family status is rapidly evolving together with the unprecedented issues that employers continue to face in light of COVID-19, organizations may wish to contact a member of our labour and employment team for assistance in navigating requests by employees relating to accommodating childcare or other caregiving needs.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.