ACCOMMODATING WORKERS AND THEIR FAMILIES DURING THE COVID-19 PANDEMIC - KELLY DOCTOR, HEATHER ANN MCCONNELL & MARY-ELIZABETH DILL GOLDBLATT ...
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
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
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
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
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
© GOLDBLATT PARTNERS April 17, 2020 4
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)
© GOLDBLATT PARTNERS April 17, 2020 5Discrimination
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
© GOLDBLATT PARTNERS April 17, 2020 6The Reality of Working from Home…
© GOLDBLATT PARTNERS April 17, 2020 7Substantive Equality
Source: Interaction Institute for Social Change (interactioninstitute.org)
Artist: Angus Maguire (madewithangus.com.)
© GOLDBLATT PARTNERS April 17, 2020 8What 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
© GOLDBLATT PARTNERS April 17, 2020 9How 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.
© GOLDBLATT PARTNERS April 17, 2020 10How 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.
© GOLDBLATT PARTNERS April 17, 2020 11Availability 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!
© GOLDBLATT PARTNERS April 17, 2020 12Reasonable 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
© GOLDBLATT PARTNERS April 17, 2020 13Undue 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
© GOLDBLATT PARTNERS April 17, 2020 14Undue 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
© GOLDBLATT PARTNERS April 17, 2020 15The 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
© GOLDBLATT PARTNERS April 17, 2020 16Changing 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
© GOLDBLATT PARTNERS April 17, 2020 17Steps 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 18Agenda
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 19© GOLDBLATT PARTNERS April 17, 2020 20
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
© GOLDBLATT PARTNERS April 17, 2020 21Accommodations 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
© GOLDBLATT PARTNERS April 17, 2020 22After 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”?
© GOLDBLATT PARTNERS April 17, 2020 23Agenda
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 24Accommodating 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
© GOLDBLATT PARTNERS April 17, 2020 25Emergency 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
© GOLDBLATT PARTNERS April 17, 2020 26Accommodating 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?
© GOLDBLATT PARTNERS April 17, 2020 27Accommodating 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
© GOLDBLATT PARTNERS April 17, 2020 28Protecting 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
© GOLDBLATT PARTNERS April 17, 2020 29Work 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/
© GOLDBLATT PARTNERS April 17, 2020 30Challenges 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
© GOLDBLATT PARTNERS April 17, 2020 31Emergency 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
© GOLDBLATT PARTNERS April 17, 2020 32Emergency 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
© GOLDBLATT PARTNERS April 17, 2020 33EMCPA 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
© GOLDBLATT PARTNERS April 17, 2020 34EMCPA 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
© GOLDBLATT PARTNERS April 17, 2020 35Emergency 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
© GOLDBLATT PARTNERS April 17, 2020 36A 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
© GOLDBLATT PARTNERS April 17, 2020 37In 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 38Agenda
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 39Family 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
© GOLDBLATT PARTNERS April 17, 2020 40Family 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
© GOLDBLATT PARTNERS April 17, 2020 41Family 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
© GOLDBLATT PARTNERS April 17, 2020 42Family 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
© GOLDBLATT PARTNERS April 17, 2020 43Family 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 44Family 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 45Family 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
© GOLDBLATT PARTNERS April 17, 2020 46Family 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
© GOLDBLATT PARTNERS April 17, 2020 47Family 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
© GOLDBLATT PARTNERS April 17, 2020 48Comparison 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 49Family 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 50Family 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
© GOLDBLATT PARTNERS April 17, 2020 51Which Leave Should I Choose?
© GOLDBLATT PARTNERS April 17, 2020 52Pay/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 53Agenda
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 54You can also read
