Health and safety

COVID-ucation Questions Series: All About Accommodations

October 13, 2020

We received many questions during our recent webinar, “COVID-ucation: Employers, Parents, School, and the Pandemic”. In a difficult time like this, we wanted to make sure the answers to these challenging questions were available, so we’ve created another multi-part question series on our blog to help ensure employers and HR professionals have access to the information they need.

How do we determine whether an employee is eligible for accommodation?

The duty to accommodate happens when an employee cannot perform their work in the usual or expected way because of a protected ground. Each jurisdiction outlines different characteristics and different circumstances when they apply (though there is considerable overlap). In the case of the COVID-19 pandemic and schools reopening, ‘family status’ is the most likely characteristic to matter.

That said, not every parent will qualify for an accommodation; the law rarely requires employers to accommodate an employee’s choices, so if a parent decides to homeschool their children despite schools being open, the employer doesn’t have to accommodate that choice. (Ontario has changed their regulations around this recently, which we discuss later.) Saying that there’s no simple answer is unsatisfying, we know, so use this guideline: if circumstances beyond the employee’s control make it impossible for them to work, they might qualify for an accommodation. And we encourage our clients to call our Live HR Advice service for guidance on any HR issue, including accommodation, no matter how big or small.

What’s different about accommodation in Ontario?

As part of the Ontario government’s response to the pandemic, they introduced the infectious disease emergency leave. There are several reasons an employee can qualify for this leave, one of which is because the employee did not send their child to school or childcare from concern the child would be exposed to COVID-19. This is at least a simple scenario for employers: the parent who qualifies is placed on the leave, which works like any other job-protected leave, and is unpaid. There is no specified limit to the number of days an employee can be on infectious disease emergency leave; they have the right to be on the leave as long as the event that triggered the entitlement lasts or until the leave is no longer active.

If we offer an employee part-time hours as an accommodation, but they want a leave of absence instead, do we have to offer that?

If an employee qualifies for a job-protected leave of absence, then they have a right to take it. So, for example, if you operate in Ontario and your employee is a parent who wants to take a leave of absence to look after their school-aged children because they fear their children being exposed to COVID-19, then that employee is entitled to take the infectious disease emergency leave.

For other employees, their case may not be as strong. Accommodation (in this example, on the ground of family status under human rights legislation) requires both the employer and the employee to act in good faith. For employers, acting in good faith means offering reasonable accommodation options up to the point of undue hardship. For employees, acting in good faith means accepting a reasonable offer of accommodation, even if isn’t exactly what they wanted. Every accommodation is unique, though, so it’s a good idea to contact our Live HR Advice for guidance if you’re unsure.

In addition to questions from our webinar, we’ve also received many questions regarding the potential effects the school year could have on the workplace. With school just starting and uncertainty ahead, we’ve created a COVID-19 School Disruption Checklist to help employers develop best practices for possible workplace disruptions arising from COVID-19 in schools. Download for FREE today.

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