What if schools shut down from COVID-19? Employment lawyer talks parents' rights

Grade one teacher Heidi Dimou arranges the desks in line with physical distancing policy in her class in preparation for the new school year at the Willingdon Elementary School in Montreal, on Wednesday, August 26, 2020. THE CANADIAN PRESS/Paul Chiasson

KITCHENER — We’re learning more about how COVID-19 cases will be handled when schools re-open.

Waterloo Region’s Medical Officer of Health Dr. Hsiu-Li Wang has said that even one confirmed case of the virus could lead to an entire class being sent home to isolate.

So what does this mean for working parents? What are their rights during a pandemic? Employment lawyer Peter McSherry answers some of your questions about being a working parent during the COVID-19 pandemic.

Is there anything in the law that protects parents and/or requires employers to make accommodations for employees with children at home?

The Employment Standards Act provides certain rights for job protected leave and there are certain protections in the Human Rights Code that may apply to the situation.

The Employment Standards Act gives a couple of grounds that may apply in situations like this. The first would be the Family Responsibility Leave. It would only provide up to three days of leave per year. That may be enough to cover a period where people are sent home as a precaution, the testing comes back and it’s negative and everybody’s back to work and school in one or two days. But that would only apply once a year but that wouldn’t do anything to address the two-week quarantine period.

Family Caregiver Leave provides up to eight weeks of leave per year per family member, but there has to be a significant risk of death. So that’s not likely to cover the vast majority of these situations. This might cover a situation where your child actually has COVID and has a very serious case of COVID. But it’s not going to do much for what we hope will be the vast majority of cases.  Then there would be the Family Medical Leave of up to 28 weeks, but again, there must be a significant risk of death.

The Declared Emergency Leave, which would be the most appropriate way to deal with this, but that expired at the end of July when emergency measures expired. So that doesn’t apply anymore.

Then we’d be looking at Human Rights legislation and that would offer protection against discrimination on the basis of family status and freedom from discrimination on the basis of sex as well. So that would provide the employer with an obligation to not discriminate but also to accommodate.

What should employees and employers do to prepare for the school year (if and when an employee has to isolate at home due to COVID-19 and/or care for a child who has to isolate at home)?

I think the first thing you need to do is assume this is going to happen at some point in time. Obviously, if you make the decision now at the beginning of September that this is going to happen and then work through it and figure out what you’re going to do, you have a much better chance of being successful, than if you wait until the morning of when a key employee doesn’t show up.

That may be that in workplaces where it’s possible, there should be as many arrangements as possible for remote work for as much as possible. Additionally, if it’s the type of workplace where remote work is impossible or isn’t feasible for certain tasks or important things, then arrangements should be made for cross-training, so if one of your employees isn’t able to show up that that important task can go on.

From an employer’s perspective, this is likely going to happen to your employees as well as the children of your employees. If your employee gets exposed, you’re still going to want them to be out of the physical location as much as possible because you don’t want them spreading COVID or quite frankly any other infectious disease to your other employees.  If you think it’s bad enough dealing with one exposed person, what is it going to look like if everyone else is exposed, as well?

Some employers are still working on policies and have been making adjustments and accommodations for employees for months. Some say there will be a point when employers experience “compassion fatigue.” Do you think this is true?

I think this has put a lot of stress on everybody for a long period of time. Everybody has obligations to do things. A lot of supply chains are broken and people are trying to come to terms with that and their obligations. I think you have to have compassion for both sides of this arrangement and people need to be open, honest and communicate directly with each other and try to work out the plan that works best for everybody.

Should employment law be updated to factor in the COVID-19 crisis?

Yes. Before this happened it was not generally considered foreseeable. But I think once it’s happened now I think it’s foreseeable it will happen again. Whether the next situation that occurs will require the same type of precautions that COVID requires, perhaps not. I think it’s rather unique that there’s a two-week quarantine period required and masks are required. So I don’t think we necessarily need to codify and assume the COVID restrictions are going to be what the next round of restrictions might require. But I think the idea that there’s a framework in place that can be changed to reflect the requirements of whatever the situation is in the future that needs to be dealt with, absolutely.

At what point should working parents pursue legal options if they’re not accommodated by an employer based on family status?

I think in a situation where there’s a financial loss or loss of employment, you definitely need to speak to an employment lawyer to review your options and see what can be done to protect your rights and protect your family. If you’re in a situation where you feel compelled to put your family at risk, you do have options, and you should consider those before you experience a loss that can’t be made up.

What do you think are some examples of accommodations employers could make for working parents with children who are sent home from school due to COVID-19?

I think the first and hopefully the best would be that there would be an ability to do the job remotely, or at least the essential job duties remotely.

I think the ability to cross-train employees and have a more flexible workplace and quite frankly I think an employee should be prepared to work shifts and provide flexibility to support each other. By that I mean, if this happens to one of your colleagues, maybe you should be prepared to assist by having the flexibility to change your schedule somewhat to accommodate their needs, if that’s doable.