ACCOMMODATING WORKERS AND THEIR FAMILIES DURING THE COVID-19 PANDEMIC - KELLY DOCTOR, HEATHER ANN MCCONNELL & MARY-ELIZABETH DILL GOLDBLATT ...

 
ACCOMMODATING WORKERS AND THEIR FAMILIES DURING THE COVID-19 PANDEMIC - KELLY DOCTOR, HEATHER ANN MCCONNELL & MARY-ELIZABETH DILL GOLDBLATT ...
Accommodating Workers and their Families During
the COVID-19 Pandemic
Kelly Doctor, Heather Ann McConnell & Mary-Elizabeth Dill
Goldblatt Partners LLP
                           © GOLDBLATT PARTNERS   April 17, 2020   1
ACCOMMODATING WORKERS AND THEIR FAMILIES DURING THE COVID-19 PANDEMIC - KELLY DOCTOR, HEATHER ANN MCCONNELL & MARY-ELIZABETH DILL GOLDBLATT ...
Agenda

Family Status Accommodation
Accommodation issues for employees working from
home
Accommodation issues for employees in the
workplace
Family leaves and benefits available to workers
Q&A

                © GOLDBLATT PARTNERS   April 17, 2020   2
ACCOMMODATING WORKERS AND THEIR FAMILIES DURING THE COVID-19 PANDEMIC - KELLY DOCTOR, HEATHER ANN MCCONNELL & MARY-ELIZABETH DILL GOLDBLATT ...
Agenda

Family Status Accommodation
Accommodation issues for employees working from
home
Accommodation issues for employees in the
workplace
Family leaves and benefits available to workers
Q&A

                © GOLDBLATT PARTNERS   April 17, 2020   3
ACCOMMODATING WORKERS AND THEIR FAMILIES DURING THE COVID-19 PANDEMIC - KELLY DOCTOR, HEATHER ANN MCCONNELL & MARY-ELIZABETH DILL GOLDBLATT ...
Impact of COVID-19 on Family Status
Accommodation

▪ Large # of employees needing accommodation
      ▪   Challenges of individualized assessment when a
          significant # of workers are now caring for school aged
          kids
▪ Lack of childcare options
      ▪   Not only are schools and daycares closed, but the
          usual backups may not be reasonable
▪ Uncertainty
      ▪   Businesses are facing economic precarity
      ▪   Changing public heath directives and restrictions
      ▪   We don’t know how long this is going to continue

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ACCOMMODATING WORKERS AND THEIR FAMILIES DURING THE COVID-19 PANDEMIC - KELLY DOCTOR, HEATHER ANN MCCONNELL & MARY-ELIZABETH DILL GOLDBLATT ...
Definition of “Family Status”

▪ Ontario Human Rights Code: “the status of being
  in a parent and child relationship”
▪ No definition in the Canadian Human Rights Act
▪ Spouses, partners, etc. are protected under the
  ground of “marital status” (marriage is not
  necessary)

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Discrimination

What is Discrimination?
▪ Unequal or different treatment or harassment that is
  based on a “protected ground.”

Types of Discrimination
▪ Direct Discrimination
   ▪ E.g. Employees with kids are laid off first
▪ Indirect/Adverse Effect Discrimination
   ▪ E.g. Employees working from home must perform
     their work from 9-5

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The Reality of Working from Home…

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Substantive Equality

          Source: Interaction Institute for Social Change (interactioninstitute.org)
                       Artist: Angus Maguire (madewithangus.com.)

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What is the Goal of Accommodation?

“[T]he goal of accommodation is to ensure that an
employee who is able to work can do so…[and] to
ensure that persons who are otherwise fit to work
are not unfairly excluded where working conditions
can be adjusted without undue hardship.”
        Hydro-Québec, [2008] 2 SCR 561

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How Does an Employee Establish a Need for
Accommodation?

Canada (Attorney General) v. Johnstone, 2014 FCA 110

▪ A prima facie case of discrimination is made out in a case
  involving childcare responsibilities, where:
   1. A child is under the complainant’s care;
   2. The obligation engages the complainant’s “legal
       responsibilities” for the child (as opposed to personal
       choice);
   3. Reasonable efforts have been made to find reasonable
       alternative solutions; and
   4. The rule interferes in a manner that is more than trivial
       with the fulfillment of the childcare obligation.

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How Does an Employee Establish a Need for
Accommodation?

Misetich v. Value Village Stores Inc., 2016 HRTO 1229

▪ The HRTO said the test for discrimination based on
  family status isn’t different than any other protected
  ground, but appeared to also consider:

   ▪   The negative impact must result in real disadvantage to the
       parent/child relationship and the responsibilities that flow from
       that relationship, and/or to the employee’s work.

   ▪   The analysis may include consideration of the other supports
       available (or not) to the applicant.

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Availability of Other Supports During the
Pandemic

▪ Emergency orders and public health directives limit
  available supports
   ▪ Any person who has entered Canada in the last 14 days
     must self-isolate
   ▪ Ontario has banned gatherings of more than 5 people or
     more (except within the same household)
   ▪ Ontario’s Chief Medical Officer of Health has
     recommended that all people over 70 self-isolate
   ▪ Quebec has limited entry into the province
   ▪ Small children do not respect physical distancing!

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Reasonable Not Perfect Accommodation

 “An employee cannot expect a perfect solution. If
 a proposal for accommodation that is reasonable
 in all the circumstances is refused by the
 employee, the employer’s duty to accommodate
 is discharged.”

 Central Okanagan School District v. Renaud, [1992] 2 S.C.R. 970

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Undue Hardship

▪ Once an employee has established a prima
  facie case of discrimination, the burden shifts to
  the employer to demonstrate that:

   ▪ The discrimination is the result of a bona fide
     occupational requirement (BFOR)

   ▪ The discrimination cannot be accommodated without
     undue hardship

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Undue Hardship Relevant Factors

The point of undue hardship is different from employer to
employer and job to job

These are the only relevant factors:
▪ Financial cost
▪ Health and safety
▪ Outside sources of funding (Ontario)

But, there may also be a need to balance competing rights

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The Procedural Duty to Accommodate

▪ If the employer fails to properly turn their mind to
  whether accommodation is possible they may
  fail in the procedural duty, even if substantive
  accommodation was not possible
▪ Note: Under the CHRA, there is no procedural
  duty to accommodate (FCA, Cruden), but this
  has not typically been material

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Changing Circumstances

▪ The point of undue hardship may change over
  time
▪ The employee’s circumstances can also change
▪ The number of employees requiring
  accommodations increase
▪ Public health directives can change
▪ Accommodations can be modified in response to
  changing circumstances

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Steps an Employee Should Take when Seeking
Accommodation
▪ Promptly tell the employer their accommodation need
▪ Show that there is a "genuine obligation to provide care" as opposed to a
  "personal choice"
▪ Show that other realistic alternatives have been explored but will not work
▪ Participate in discussions and be open to reasonable arrangements even if they
  are not the employee's preferred solution
▪ Construct a support system comprised of varying caregiving options (if possible)
▪ Practice effective time management (if possible)
▪ Be open to adjusting a previously agreed upon accommodation solution in the
  event that circumstances change

Modified from the Canadian Human Rights Commission, A Guide to Balancing Work and Caregiving Obligations –
Collaborative Approaches for a Supportive and Well-Performing Workplace” http://www.chrc-
ccdp.gc.ca/sites/default/files/a_guide_to_balancing_work.pdf

                                  © GOLDBLATT PARTNERS    April 17, 2020                                     18
Agenda

Family Status Accommodation
Accommodation issues for employees working from
home
Accommodation issues for employees in the
workplace
Family leaves and benefits available to workers
Q&A

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Availability of Other Options

▪ Employees need to explore what other options
  are available
  ▪ Can they work out “shifts” with another parent?
  ▪ Can they bring in an outside caregiver?
  ▪ Can they trust an older child to babysit?
▪ These options may not be reasonable due to
  public health directives or individual health
  concerns
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Accommodations for Employees Working from
Home

▪ Technological or logistical support
▪ Flexibility in working hours
  ▪ Modified working hours
  ▪ Ability to take longer breaks
  ▪ Ability to take unpredictable breaks
▪ Modified productivity expectations
  ▪ Extended deadlines
  ▪ Reduced workload
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After the Pandemic

▪ Things may return to “normal” in phases
▪ The pandemic is going to shift how we look at
  working from home
▪ Can accommodations continue when things
  have returned to “normal”?

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Agenda

Family Status Accommodation
Accommodation issues for employees working from
home
Accommodation issues for employees in the
workplace
Family leaves and benefits available to workers
Q&A

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Accommodating Childcare Responsibilities

▪ Before requesting accommodation, examine
  whether other supports are available:
  ▪ Is there another available shift?
  ▪ Is there another caregiver available?
  ▪ Is the employee eligible for “Emergency Childcare”?
▪ Some of these options may not be reasonable
  due to public health or individual health
  concerns
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Emergency Childcare

▪   The Ontario gov’t has allowed some daycares to serve frontline and health care staff
▪   The following people are eligible for emergency childcare:

     ▪   Regulated and unregulated health care providers; for example, doctors, nurses, paramedics, personal
         support workers
     ▪   Police officers and members of a police force other than a police officer, as defined in the Police Services
         Act
     ▪   Firefighters and those engaged in providing fire protection services or employed in a fire department, as
         defined under section 1 of the Fire Protection and Prevention Act, 1997
     ▪   Coroners
     ▪   Those working in correctional institutions, including those working in the Institutional Services Division or
         Community Services Division, and other justice-related settings (as determined by municipalities), including
         those employed in a place of secure custody or a place of secure temporary detention
     ▪   Animal welfare inspectors
     ▪   Employees of Compass Group Canada Ltd. who work at or provide services in relation to the Cook Chill
         Food Production Centre
     ▪   Individuals employed in the Direct Operated Facilities Branch of the Ministry of Children, Community and
         Social Services (MCCSS)
     ▪   Those performing work that is essential to the delivery of core services in their communities, as determined
         by the municipality or First Nation
     ▪   Those working in emergency childcare settings

▪   However, for some employees, this may not be a reasonable option

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Accommodating Childcare Responsibilities

▪ Can the worker's job be done remotely?
▪ Can work duties be realigned to permit an
  employee to work from home?
▪ Can a schedule be modified to allow the
  employee to work when they have childcare
  available to them?

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Accommodating Vulnerable Family Members

▪ Some employees may live with or care for family
  members who are at high risk if they contract
  COVID-19
  ▪ e.g. elderly, immunosuppressed /compromised,
    medically vulnerable family members
▪ Employers have a duty to accommodate these
  employees to the point of undue hardship

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Protecting Family Members from Risk

▪ How can employers protect workers against
  infecting vulnerable family members?
  ▪ Physical distancing between workers and between
    workers and the public
  ▪ Personal protective equipment
  ▪ Off-peak commuting
  ▪ Paid parking to avoid public transit
  ▪ Removal from higher-risk duties
  ▪ Alternate housing

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Work Refusals

▪ In some situations a work refusal under the
  Occupational Health and Safety Act may be
  appropriate
▪ For more info:
   ▪ Attend next week’s webinar on Protecting Worker Health
     and Safety During the Pandemic (April 23 at 10 a.m.)
   ▪ Review of blog post on refusing unsafe work:
     https://goldblattpartners.com/blog/when-and-how-can-i-
     refuse-unsafe-work/

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Challenges Employees May Face

▪ Employers may refuse individual
  assessments due to # of workers requiring
  accommodation
▪ Where multiple employees require
  accommodation there may be more limited
  options
▪ Not enough PPE to protect workers
▪ Emergency powers
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Emergency Management and Civil Protection Act

▪ Ontario government invoked emergency powers
  ▪ Effective March 17, 2020 to May 12, 2020 (currently)
  ▪ Allows the government to make orders that prevail
    over any statute, regulation, rule, bylaw or other order
    or instrument of a legislative nature unless
    other instrument states that it applies notwithstanding
    the EMCPA
  ▪ Orders are subject to the Charter

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Emergency Powers and the Human Rights Code

▪ The OHRC is quasi constitutional legislation and
  cannot be set aside by an emergency order
  ▪ Section 47(2) confirms that where a provision in an
    Act or regulation purports to require or authorize
    conduct that is a contravention of Part I, this Act
    applies and prevails unless the Act or regulation
    specifically provides that it is to apply despite this Act

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EMCPA Orders – Impacted Workplaces

▪ Hospitals & related health service providers
▪ Long-term care homes
▪ Boards of health
▪ Retirement homes
▪ Service agencies for adults with developmental
  disabilities
▪ Water systems & sewage systems operators
▪ The Ministry of Transportation

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EMCPA Orders – Workplace Management

Powers include:
▪ Redeploying staff between different work sites
▪ Having non-BU workers do BU work (including
  contractors and volunteers)
▪ Changing schedules & cancelling leaves
▪ Collecting information from EEs
▪ Suspending the grievance procedure with respect to
  matters that are referred to in the order
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Emergency Orders and Human Rights

▪ Any emergency order must promote the public
  good and minimize intrusiveness
▪ However, the context of the pandemic will impact
  the analysis of what is “reasonable” in the
  circumstances
  ▪ Available alternatives
  ▪ Undue hardship

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A Role for Unions

▪ Advocate for members
  ▪ Push for an individualized assessment
  ▪ Purposive interpretation of existing leaves and benefits
  ▪ File grievances & expedite if possible
▪ Educate members
  ▪ Explain the employee’s role in the accommodation process
▪ Organize and keep the evidence
  ▪ Help employees compile necessary evidence
  ▪ Document requests for accommodation and employer
    responses

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In a Nutshell…

▪ An employer must accommodate an employee who has care-giving
  responsibilities up to the point of undue hardship
▪ These care-giving responsibilities could include situations where
  another family member is ill or in self-isolation, or where their child’s
  school is closed due to COVID-19
▪ Potential accommodations can include allowing employees to work
  from home where feasible, permitting employees to work alternate
  hours, allowing employees to take leaves from work, or other flexible
  options
▪ Unions have a role to play in negotiating collective accommodations
  where practical and feasible, and in helping employees understand
  their rights and the need to document and maintain evidence
▪ Human rights obligations are not displaced by emergency orders,
  but they may impact how those rights are understood and applied
                       © GOLDBLATT PARTNERS   April 17, 2020              38
Agenda

Family Status Accommodation
Accommodation issues for employees working from
home
Accommodation issues for employees in the
workplace
Family leaves and benefits available to workers
Q&A

                © GOLDBLATT PARTNERS   April 17, 2020   39
Family Leave Options: Ontario

If I need to care of a family member, what options
do I have to take time off work?
1.   Designated Infectious Disease Leave
2.   Family Medical Leave
3.   Family Caregiver Leave
4.   Critical Illness Leave
5.   Family Responsibility Leave

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Family Leave Options: Ontario

Designated infectious disease leave
▪   New unpaid leave
▪   No maximum number of days
    ▪ Can take unpaid leave of absence for as long as you are not
      able to perform your employment duties for a specified reason
      related to COVID-19 (and as long as COVID-19 remains a
      "designated infectious disease")
▪   Must advise your employer you are taking this leave
▪   The leave is available in 6 situations related to COVID-19
    ▪ One of those situations is where you are providing care or
      support to one of several specified family members for a matter
      related to the disease, including school closures

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Family Leave Options: Ontario

Designated infectious disease leave, cont'd
▪  Specified family members include:
   ▪ Your spouse
   ▪ Your or your spouse's child, sibling, parent, grandparent, uncle
     or aunt, nephew or niece
   ▪ A person who considers you to be like a family member
▪ As with other leaves, ER may require EE to provide evidence that is
  reasonable in the circumstances to show entitlement, but…
   ▪ Evidence can only be demanded “at a time that is reasonable in
     the circumstances”
   ▪ ER cannot require a medical certificate/doctor’s note as evidence

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Family Leave Options: Ontario

Designated infectious disease leave, cont'd

▪   The leave entitlement applies retroactively to January
    25, 2020

▪ Any worker who was not working as of that date and falls
  under one of the six categories is deemed to have been
  taking this leave – so anti-reprisal rules would apply

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Family Leave Options: Ontario

Family medical leave
▪   Unpaid leave up to 28 weeks
▪   You may be entitled to this leave if you are providing care or support to a specified family
    member and you have a doctor's note specifying that that family member has a serious
    medical condition with a significant risk of death within a period of 26 weeks or less
▪   Specified family members include: your spouse; your or your spouse's child, parent,
    sibling, aunt or uncle, nephew or niece, grandparent; person who considers you to be like
    a family member

Family caregiver leave
▪   Unpaid leave up to 8 weeks
▪   You may be entitled to this leave if you are providing care or support to a specified family
    member and if you have a doctor's note specifying that that family member has a serious
    medical condition
▪   Specified family members include: your spouse; your sibling; your or your spouse's
    parent, child, grandparent; a relative who is dependent on you for care or assistance

                             © GOLDBLATT PARTNERS   April 17, 2020                                 44
Family Leave Options: Ontario

Critical illness leave
▪     Unpaid leave up to 37 weeks for critically ill minor child or up to 17 weeks for critically ill adult
▪     You may be entitled to this leave if you are providing care or support to a critically ill minor child
      or adult and you have a doctor's note that states that that family member is critically ill and
      requires care or support and that sets out the period during which the family member requires
      that care or support
▪     Available to EEs who have been employed by the ER for at least 6 consecutive months
▪     If your family member passes away, the leave ends the last day of the week in which they die
▪     Specified family members include: your spouse; your or your spouse's child, parent, sibling, aunt
      or uncle, nephew or niece, grandparent; a person who considers you to be like a family member

Family responsibility leave
▪    Unpaid leave up to 3 days each year
▪    You may be entitled to this leave if you need to tend to the illness, injury, medical emergency or
     other urgent matter relating to your spouse; your sibling; your or your spouse's parent, child or
     grandparent; or a relative of yours who is dependent on you for care or assistance
▪    ER may require you to provide "evidence that is reasonable in the circumstances" to justify this
     leave

                                 © GOLDBLATT PARTNERS   April 17, 2020                                    45
Family Leave Options: Federal

If I need to care of a family member, what options
do I have to take time off work?
1.   COVID-19 Leave
2.   Personal Leave
3.   Compassionate Care Leave
4.   Leave Related to Critical Illness

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Family Leave Options: Federal

COVID-19 Leave
▪ Canada Labour Code amended to provide a
  specific unpaid leave solely for COVID-19
▪ Applies to workers who are “unable or
  unavailable to work for reasons related to”
  COVID-19
▪ No further list of pre-conditions

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Family Leave Options: Federal

COVID-19 Leave
▪ Leave has a maximum duration of 16 weeks, but may be
  varied by regulation
▪ Employer may not demand a medical certificate or note,
  but may require a written declaration from EE
▪ Available as of March 25, 2020 - it is not retroactive
▪ Legislation automatically repeals on October 1st
   ▪ On October 1, 2020, COVID-19 leave is replaced with a general
     Quarantine Leave that is not set to expire - provides up to 16
     weeks of leave for a person under quarantine

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Comparison of Leaves

              Provincial Leave                              Federal Leave
Entitlement   6 specific situations related to              Any reason related to COVID-19
              any designated disease
Max Duration None (so long as entitlement                   16 weeks
             continues to exist)
Start date    January 25, 2020                              March 25, 2020
End date      Permanent enactment                           October 1, 2020
Evidence      Anything – other than medical Written declaration from
              note – that is reasonable in the employee. No medical note may
              circumstances; to be provided be demanded.
              at a reasonable time

                        © GOLDBLATT PARTNERS   April 17, 2020                                49
Family Leave Options: Federal
Personal Leave
▪   Unpaid leave up to 5 days
▪   Can take this leave for various reasons, including if you are:
     ▪   Carrying out responsibilities related to the health or care of any of your family members
     ▪   Carrying out responsibilities related to the education of any family member who is under 18
     ▪   Addressing any urgent matter concerning your family members
▪    If you've been employed for 3 consecutive months with the employer, you are entitled to
     the first 3 days of the leave with pay
▪    ER may request documentation to support reasons for the leave

Compassionate Care Leave
▪  Unpaid leave up to 28 weeks to provide care or support to a family member with a
   serious medical condition and with a significant risk of death within 26 weeks
▪  Must provide certificate from health care practitioner stating that the family member has a
   serious medical condition with a significant risk of death within 26 weeks
▪  Leave ends the last day of the week the family member dies
▪  If multiple caregivers take a Compassionate Care Leave with respect to the same person,
   they must split the 28 weeks between them

                                © GOLDBLATT PARTNERS    April 17, 2020                                 50
Family Leave Options: Federal

Leave Related to Critical Illness
▪   Up to 37 weeks to care for or support a critically ill child or up to 17
    weeks to care for or support a critically ill adult (both must be family
    members)
▪   Requirement for a medical certificate that states that the family
    member is critically ill and requires care or support and that sets
    out the period during which the family member requires that care or
    support
▪   Leave ends the last day of the week that the family member dies

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Which Leave Should I Choose?

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Pay/Benefit Options While on Unpaid Leave

1. Look at your Collective
   Agreement!
  ▪ Sick leave, compassionate
    leave, personal days, etc.

2. Canada Emergency
   Response Benefit
   (CERB)
3. EI Benefits
                 © GOLDBLATT PARTNERS   April 17, 2020   53
Agenda

Family Status Accommodation
Accommodation issues for employees working
from home
Accommodation issues for frontline workers
Leaves and benefits available to workers
Q&A
               © GOLDBLATT PARTNERS   April 17, 2020   54
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