*This blog was updated on April 26, 2022.
Though schools in most provinces have reopened, not all parents may be sending their children to school due to the threat of the Omicron variant and its sub-variants. Employees who do not have childcare options may refuse to return to work as they need to be home to look after their kids.
This puts employers in a tough spot. You need your entire workforce back as restrictions are lifted and you resume operations, but you also want to be supportive of your staff during this difficult time.
What are my duties as an employer?
Under human rights legislation, an employer has a duty to accommodate employees to the point of undue hardship. It applies to needs that relate to grounds of discrimination (which include ground of family status). So you must accommodate an employee who has caregiving responsibilities up to the point of undue hardship.
Undue hardship is when accommodating a worker’s needs is not possible as it is too expensive or could create health or safety risks.
You cannot fire an employee for refusing to return to work because they have to take care of their kids. If you do, you’d be exposing yourself to litigation.
What rights do employees have?
Most provinces have amended their employment standards legislation to include an unpaid, job-protected leave of absence due to COVID-19 related reasons, including closure of daycare or schools due to a public health order. Employees who have children but no childcare support can avail of the unpaid, job-protected COVID-19 related leave.
The Ontario government amended the Employment Standards Act, 2000 to provide for an unpaid-infectious disease emergency leave. It includes a provision for a leave of absence if the employee needs to look after their child whose school or daycare was closed due to COVID-19. It is also applicable if the employee did not send their child to school or daycare out of fear of exposure to COVID-19.
There is no specified limit to the number of days a worker can be on unpaid-infectious disease emergency leave. Employees can avail of the leave for as long as the reason for taking the leave exists.
The province made a temporary change to its employment standards rules. The five-day Personal and Family Responsibility Leave has been extended to a “job-protected leave for a period of time that is necessary to meet the employee’s family responsibilities, if they need to care for self-isolated family members or children who are unable to attend school or child care services as a result of any recommendations or directions of the Chief Medical Officer with respect to COVID-19”.
A medical note is not required to go on leave, and an employee can take this leave more than once.
Employees in B.C. can use the unpaid, job-protected COVID-19 related leave if they need to take care of their child due to “closure of a school or daycare or similar facility”. This leave can be taken for as long as the circumstances for taking it exist.
Employees in Manitoba can take the unpaid Public Health Emergency Leave for COVID-19 related reasons, including “providing care, support or assistance to a family member as a result of COVID-19, including but not limited to, school and daycare closures”.
An employee is allowed to take as much time as needed if they are eligible for this leave. They can also take this leave as many times as necessary. The leave entitlement ends when the specific circumstances no longer apply to the employee.
Employees in Saskatchewan can avail of the unpaid Public Health Emergency Leave when directed to isolate themselves or “care for their child or adult family who have been affected by an order or direction of the Government of Saskatchewan or an order of the chief medical health officer during a public health emergency”. Employees would be entitled to their regular wages and benefits if their employer allows them to work from home during the period.
How to best approach such work refusals?
There is no standardized solution in this case as each employee’s circumstances will be different. Talk to your employees about their needs and evaluate your options in each case. While you want what is best for your business, you don’t want to lose experienced and qualified staff due to a temporary crisis. Though a COVID-19 related leave without pay is available to employees, it should be the last option.
Try and find a solution that works for both you and your employee. For example, you could accommodate your employee by allowing them to work from home or work flexible hours. If the nature of their work requires being present in the workplace, you could offer them alternative work that can be done remotely. They could also work alternate shifts in case a part-time caregiver/sitter is available to them.
If you have a number of parents on your staff who are without childcare options, you may want to consider providing daycare at the office. Both parties must be flexible and willing to work together to find a mutually agreeable solution.
Do you need help managing work refusals due to childcare responsibility ?
Our experts can help you create company policies and assist you with any other human resource management, health and safety or employee management advice you may need. To learn more about how our services can benefit your business, call an expert today at 1 (833) 247-3652.