Return to Work After COVID-19: When babies still need tending and parents are mending

May 15, 2020

Yesterday, Premier Ford announced Stage 1 of the reopening of Ontario and identified some businesses that are permitted to reopen on Tuesday after the long weekend. To view the health and safety guidelines for reopening, click here

These employers will, therefore, want employees to return to work.

I expect that some employees with school-age children or dependent parents will resist.

In particular, I believe that employees who can work remotely will request to continue working from home, and those who cannot work remotely will ask for a change in their working hours. 

In Ontario, subsection 5(1) of the Human Rights Code explicitly protects employees from discrimination on the basis of family status.

Employers are required to accommodate an employee’s family status needs to the point of undue hardship. The Supreme Court of Canada has confirmed that the duty to accommodate includes procedural and substantive components. The procedural duty involves a consideration of the procedures and steps taken to respond to a request for accommodation. Where an accommodation is warranted, the substantive duty requires employers to make necessary modifications, up to the point of undue hardship.

Proving Family Status Discrimination

An employee must prove a prima facie discrimination, and then generally, an employer has a duty to accommodate to the point of undue hardship.

Tests for Proving Family Status Discrimination

The Ontario Courts and the Ontario Human Rights Tribunal are currently considering two tests.

The Johnstone test (From a case decided by the Federal Court of Appeal)

In order to discern a prima facie case of family status discrimination resulting from childcare obligations, the individual advancing the claim must demonstrate the following: 

(i) that a child is under his or her care and supervision; 

(ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; 

(iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and;

(iv) the impugned workplace rule interferes in a more than trivial or insubstantial manner with the fulfillment of the childcare obligation.

The Misetich case (From a case decided by the Ontario Human Rights Tribunal)

In order to prove family status discrimination in the context of employment, the employee will have to do more than simply establish a negative impact on a family need. 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.

Differences between the Johnstone test and the Misetich test

Under the Misetich test, it is improper to limit human rights protections to legal responsibilities. In this regard, the second requirement of the Johnston test was rejected.

Under the Misetich test, it is inappropriate to consider accommodation issues. “Requiring an [employee] to self-accommodate as part of the discrimination test means the applicant bears the onus of finding a solution to the family/work conflict; it is only when he/she cannot that discrimination is established.” Thus, the third requirement of the Johnston test was rejected.

The Current State of the Law

Although the Misetich standard has been consistently applied in Ontario human rights decisions, in a 2019 decision, the HRTO considered both the Misetich and Johnstone approaches in its analysis.  In doing so, it noted that on the facts of that particular case, the same result would be reached regardless of which test was applied.  However, it did not clarify why it was considering the Johnstone analysis and whether it was an analysis that could or should be used by the HRTO in future cases  The same scenario arose in the Ontario Divisional Court in a 2019 decision, where this court also discussed both the Misetich and Johnstone tests.

The Battleground – can an employee prove a legal obligation to a child or parent?

I suspect some employees with ongoing child care and/or eldercare responsibilities will resist returning to work when directed to return to the workplace. Instead, they will ask to continue working remotely because of their responsibilities to the child or parent. It could be because schools are still closed. It could be because they don’t want to expose elderly parents to a higher risk of catching COVID-19.

If so, under the Johnstone test, an employee must show a legal responsibility to the child or parent. However, no such legal obligation must be proven under the Misetich test; rather the employee must prove a real disadvantage to the parent/child relationship, which is easier to prove, especially relating to eldercare. In addition, the employee must also demonstrate that he or she can perform their essential job duties from home. 

Please keep in mind, if a child or parent is sick, then an employee can take a number of unpaid leaves under the Employment Standards Act, and there is a new COVID-19 leave that allows a parent to take unpaid leave to care for a child because of the virus due to school or childcare closures.  These unpaid leaves are also something to keep in mind when considering possible accommodation options.

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416-317-9894 or at [email protected]

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