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Returning to the workplace: Navigating employee requests to work from home for childcare reasons

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Canada Publication June 29, 2021

It has been over a year since COVID-19 first triggered a mass exodus from workplaces. Employees with young children have had to manage difficulties arising from school closures, virtual learning, and struggles to secure and maintain childcare. As employers look toward returning to the workplace in light of the improving public health landscape, they may face requests from employees to preserve remote working arrangements due to ongoing childcare challenges. 

Although employers may generally require an employee to work in the workplace (subject to the individual terms of the employment agreement), requests for modified work arrangements due to childcare can also engage the Ontario Human Rights Code (the Code) on the ground of family status. Accordingly, employers should be aware of their human rights obligations and the potential issues that may arise if an employee objects to returning to the workplace.


Understand the basis for the objection

For employees who have managed to balance childcare responsibilities with working from home, they may wish to continue their remote working arrangement out of personal preference. For example, an employee may want to work from home to save the time and money associated with commuting and childcare. Although an employer may consider extending remote working arrangements in these instances, the Code generally does not entitle an employee to continue working from home merely based on personal preference.

However, the Code may be engaged where the employee demonstrates that being required to return to the workplace would result in a “real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship.” For example, Code protection may crystallize if returning to the workplace would “put the employee in the position of having to choose between working and caregiving” because of an absence of reasonable childcare alternatives.1

Even if childcare is available, the personal health circumstances of the employee or the child may be such that the family cannot endure the increased risk of exposure to COVID-19 associated with an external childcare setting or in-person schooling. This type of situation may engage Code protection based on family status and/or disability, depending on the particular facts of each case.

Take an individualized approach

Where an employer’s duty to accommodate is engaged, the employer must consider its duty case-by-case with an eye to the employee’s specific circumstances. For example, an employer cannot rely on a blanket policy requiring all employees to work at the workplace if issues relating to family status are legitimately engaged. 

However, the employee also has a duty to cooperate in the accommodation process. The employee’s duty includes providing sufficient information about the nature of the employee’s childcare obligations and the availability of childcare supports or alternatives, if any, and working jointly with the employer to try and arrive at a solution.2  

Although an employee is entitled to reasonable accommodation under the Code, the employee is not entitled to insist on a particular accommodation.3 While an employee may want to work from home full time, there may be other solutions. For example, consider whether other modifications could resolve the adverse impact on the employee, such as having the employee work in the workplace but on a modified schedule, or permitting the employee to work from home part-time if the employee has secured part-time childcare. 

Employers should also consider whether the accommodation is temporary – i.e. until school reopens – or whether a longer-term accommodation will be necessary, as this information will frame the scope of potential solutions. 

The duty to accommodate is not limitless, but an employer is required to accommodate an employee up to the point of undue hardship. The Code provides that “undue hardship” is assessed with reference to the cost, sources of outside funding, and health and safety considerations associated with the accommodation. Ultimately, assessing undue hardship is context specific and depends on the particular circumstances of each case.

Document the process

As a best practice, employers should keep accurate and up-to-date records relating to employee work arrangements and accommodation requests. Even if it appears the employee’s request to continue working from home is based on a preference as opposed to a Code-protected ground of discrimination, the employee may see things differently. Records of e-mails, letters and notes of discussions with the employee are helpful from a human resources management perspective and become essential if the employee ever files a human rights complaint.

Conclusion

As public health restrictions ease and employers look to returning to the workplace, some employees may not want to alter their current remote working arrangements. Employers need to be alert to whether an employee’s objection to returning to the workplace stems from a personal preference, or engages family status considerations under the Code. Under the Code, employers have a duty to accommodate, which may include permitting the employee to continue working from home. Ultimately, the nature and extent of any accommodation will depend on the particular circumstances of each case.


Footnotes

1   Misetich v Value Village Stores Inc, 2016 HRTO 1229 (CanLII), at paras 43, 54 (Misetich).

2   Misetich, at para 57; Espinoza v The Napanee Beaver Limited, 2021 HRTO 68 (CanLII), at para 97 (Espinoza).

 



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