Employment and Kids. COVID-19 challenges.
Updated: Jun 14
Discrimination based on the family status, childcare obligations.
Child obligations have a significant impact on employment relationships and have become an issue recently due to the spread of COVID-19. It is specifically the case for those who are required to continue their work out of their home. They should manage and supervise their kids even though the schools are closed, and social gatherings prohibited. What to do when your employment obligations conflict with your childcare obligations? What your entitlements are if you have been terminated because you choose to do childcare by yourself?
The very first thing to be aware of is that childcare obligations are important, and the law recognizes this. Employers in Ontario are required to accommodate, as the failure to do so may be considered as discrimination based on the family status. However, that is not necessarily might be the case. Depending on the surrounding circumstances the employer’s conduct might be treated as a simple distinction, which does not trigger legal liability at all.
As Justice Abella stated in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal,  1 S.C.R. 161 at para. 49:
(...)there is a difference between discrimination and distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.
However, the accommodation is both way process, and to establish discrimination an employee shall prove that he actually asked for accommodation. Many cases have fallen since the employee was not able to prove that the accommodation was requested.
Ontario Human Rights Tribunal in Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362, paras 35-36, stated that: “In order to trigger the duty to accommodate, it is sufficient that an employer is informed of the employee's disability-related needs… . The test is whether the respondent knew or ought reasonably to have known that the applicant had a disability requiring accommodation”. Although this case is concerned with the accommodation based on the disability, it would be proper to follow these instructions. The email to your supervisor or HR department would be sufficient to prove that you asked for accommodation.
It is also important to understand that employer does not require you to accommodate your needs immediately. He might have no options on how to make your work arrangements suitable. The accommodation process may take time, sometimes longer than it is expected. And during that time employee is under a legal obligation to cooperate with the employer and do not refuse reasonable offers extended to the employee. The consensus might be reached only when both sides sacrifice something for having the relationship continued. Failing to cooperate by the employee might be a good reason for claim dismissal.
Ontario Human Rights tribunal in Misetich v. Value Village Stores Inc.,  O.H.R.T.D. No. 1253 stated that once the applicant proves discrimination, the onus shifts to the respondent to establish that the applicant cannot be accommodated to the point of undue hardship. It is then that one considers whether the applicant cooperated in the accommodation process. The obligation to cooperate includes providing the respondent with sufficient information relating to the family-related needs and working with the respondent in identifying possible solutions to resolve the family/work conflict. Accommodation is a joint process; it is not something that falls solely to the applicant.
Another trick used by the business to avoid liability in this type of cases is the duty to mitigate imposed on the worker. The employee is required to prove on the balance of probabilities that there were no other options easily available for him on how to arrange his childcare obligations. In most cases, employees are facing the necessity to address the availability of “babysitting”. Calling for a family member or a paid service should be seriously considered.
The employee would be required to prove that this option was not available, and the costs of such services are not relevant. It should be a work arrangement, absence of other family members, difficulties due to locality or other factors which make it impossible or hard to find a suitable arrangement.
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