Return to Work Case Studies from the Front Lines – Case Study #7

Back to School During a Pandemic: Risks, Considerations and Best Practices for Employers

As employers continue to adapt their employees’ working arrangements amid the ongoing COVID-19 pandemic, a  new challenge has arisen as they must consider the implications of the unprecedented and varied manner in which employees’ children will be returning to school for the 2020-2021 school year.

In this seventh post of our blog series, Return to Work Case Studies from the Front Lines, we draw from our experiences working with employers “on the ground” to provide practical insights for organizations regarding the risks, considerations, and best practices for addressing the implications of “back to school” in the COVID-19 context. Although some school boards’ back to school plans are still in flux, it is crucial to note that many Ontario school boards have required parents to decide whether their children will attend school in person (whether full-time or part-time)  or learn entirely remotely this school year, and many of these deadlines have already passed. Moreover, many Ontario school boards will permit parents to subsequently change their decision, but students may only swap between in-person and online learning on certain dates (“entry points”) and/or when there are sufficient spaces available, which can vary by school board.

While this case study is largely based on a real-world situation with which we recently assisted a client, we have also extrapolated how the situation may play out this Fall, to illustrate the obstacles that employers may encounter going forward and how they can be overcome. As usual, the details of the scenario have been adapted and anonymized.

The Scenario

• A medium-sized professional services firm (the “Employer”) was situated in a location where the children of its employees attend the schools of one of two school boards (the “School Boards”).
• Both School Boards would allow elementary students to attend school in person five full days a week or attend entirely remotely, while secondary students must either learn remotely or alternate between in-person and remote learning each day.
• Both School Boards required parents to decide whether their children would learn remotely or with full/partial in-person attendance by certain dates in mid August (the “Deadlines”). Both School Boards permitted parents to change their decisions regarding whether their children will attend school in person or not after the Deadlines, but each had different entry points when the children are actually permitted to switch their manner of attendance, which were generally a few months later.
• Most of the Employer’s employees (the “Employees”) had been working from home since March due to the pandemic.
• The Employer wanted as many Employees to return to working in the office as possible, because their work required a high level of collaboration that was not easily achieved through remote working arrangements. However, the Employer was also aware that some Employees may not want to have their children attend school in person, and that they may prefer to work from home as a result.
• The Employer decided in mid August that it would implement a policy requiring all employees without children to return to working in the office and encouraging employees with children to work in the office but making it voluntary. Fortunately, the Employer reached out to us for legal advice before communicating and implementing this policy.
• We advised the Employer that treating employees differently based on whether or not they have children generally constitutes discrimination on the basis of family status where that differential treatment is not for the purposes of accommodating limitations arising from a protected ground under the Human Rights Code [Code]. Accordingly, the Employer decided to implement a policy requiring all employees to return to working in the office, subject to any valid accommodation needs.
• After implementing the policy, the then realized that the Deadlines of both School Boards had passed, and that several Employees had elected to have their children engage in remote learning only, including an employee named Karla, and some requested to continue working from home as an accommodation.
• The Employer then reached out to us for further guidance. We advised the employer that they were obligated to accommodate limitations on employees’ ability to perform their duties arising from the protected ground of family status, up to the point of undue hardship. We advised that accommodations must be determined on a case by case basis, but that generally they would be obligated to accommodate employees who needed to remain home to meet their caregiving obligations as a parent, such as when a young child is learning remotely and no one else can watch the child during the school day. Whether an employee’s caregiving obligations require them to stay home with a child depends on their age. Those caregiving obligations require parents to care for most elementary-aged children, while most secondary-aged children would not require adult supervision, subject to extenuating circumstances (e.g. a special needs child who cannot be home alone).
• The employer assessed each of the Employees’ accommodation requests on a case-by-case basis, and found that many of the employees had a spouse or family member who could supervise their young child during the school day, or that their child was old enough to engage in remote learning at home without parental supervision. As such, the employer determined that most employees were not entitled to the accommodation of continuing to work from home.
• On the other hand, Karla did not have anyone to watch her young child while they engaged in remote learning at home, and she could not switch her child to in-person attendance until the next entry point for her child’s school, which was about two months later. As such, Karla was entitled to reasonable accommodations to allow her to meet her childcare obligations at least until her child was able to switch to attending school in person. The Employer offered Karla an accommodation by allowing her to work from home until her child began attending school in person.

Key Considerations and Takeaways:

In Ontario and generally across Canada, every person has a right to equal treatment with respect to employment without discrimination on the basis of any of the protected grounds under the Code, including family status.

Ontario employers also have an obligation to accommodate employees who have limits upon their ability to perform their duties and responsibilities as a result of a protected ground under the Code, including family status-based caregiving needs, such as childcare and elder care obligations.

For more information on employers’ duty to accommodate family status limitations and how employers should respond to accommodation requests, please refer to our Case Study #3.

In this case, the Employer had planned on implementing a policy that could have exposed it to substantial liability for discrimination under the Code by treating Employees who are parents differently than Employees without children, which would deprive the Employees without children of the choice to work remotely or in the office that would be afforded to Employees who were parents. Fortunately, the Employer proactively sought legal advice and consequently implemented a non-discriminatory policy that accounted for any accommodation needs that the Employees may have.

The Employer also met both its procedural and substantive accommodation duties. It met its procedural duty to accommodate by inquiring into the circumstances of each employee requesting accommodation to determine if there was a valid need for accommodation and assessing each request for accommodation in good faith. The Employer also met its substantive duty by providing Karla with reasonable accommodation by allowing her to work from home until her child could begin attending school in person.

In the unique context of “back to school” during the ongoing COVID-19 pandemic, there are also additional considerations for employers to bear in mind. For example, there may be circumstances in which it is reasonable for an employee to not have their child attend school in person, despite that this may prevent them from being able to work at the workplace, and their employer may be required to accommodate this. Such circumstances could include where a child has a medical condition that places them at an elevated risk of contracting COVID-19 or experiencing serious complications if they do. Similarly, an employee may be justified in switching their child from in-person attendance to remote learning during the school year if there were a serious outbreak of COVID-19 at their child’s school, and the employer could be required to accommodate their caregiving obligations if the circumstances require it. Therefore, it is crucial to recognize that accommodation requests must always be determined on a case-by-case basis in light of all relevant circumstances, including how fluctuating schooling arrangements amid the pandemic may impact parents’ ability to meet their caregiving obligations.

Given that it is challenging in normal times for employers to understand and meet their duty to accommodate employees and that our current circumstances complicate matters further, employers should ensure they take care to obtain sufficient information from employees and consider employees’ accommodation needs on a case-by-case basis. Our lawyers are, as always, available to assist you in understanding your accommodation obligations during these unusual and challenging times.

This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.