Childcare, Human Rights and COVID-19
Childcare is one of the most difficult areas to navigate for employers during the COVID-19 pandemic. Schools and daycares were closed forcing many employees to balance working from home with childcare obligations. As restrictions gradually ease, businesses are ramping up and employees are returning to the physical workplace. In some instances, employers are facing resistance from employees who advise that they cannot return to work on account of childcare obligations. Employers must tread carefully when faced with such a situation.
The British Columbia Human Rights Code prohibits discrimination on the basis of, amongst other things, physical disability and family status. The British Columbia Human Rights Commissioner confirmed that, in her opinion, the British Columbia Human Rights Code will apply to individuals who must care for children due to school and childcare closures. As a result, employers must take steps to accommodate employees who need time away from work to care for children up to the point of undue hardship. Undue hardship is contextual but may be established where the accommodation is inordinately expensive or creates a health and safety risk. In short, employers should be careful when disciplining employees unable to return to work due to childcare options.
All that said, employee rights are not unfettered. Employees must engage in the accommodation process. This means that employees should look for alternative childcare if they are unable to attend work due to childcare or school closures. Although not a COVID-19-related case, the British Columbia Human Rights Tribunal recently confirmed in Ziegler v. Pacific Blue Cross (No. 2), 2020 BCHRT 125, that parents must “explore the availability of [alternative] day care options that would meet [the parent’s] child’s daycare needs” as part of the accommodation process.
Employers will also want to be aware that (as previously discussed here) the Employment Standards Act was recently amended to include job-leave protections for individuals who are away from work due to COVID-19. This new leave expressly covers employees who “need to provide care to their minor child or a dependent adult who is their child or former foster child for a reason related to COVID-19, including a school, daycare or similar facility closure.”
Employers should exercise caution when disciplining or terminating an employee given the above-noted protections. We see childcare protections becoming increasingly important moving forward. Sniffles, sneezes and coughs will arrive alongside the cold and flu season. Most childcare facilities have a strict rule prohibiting children from attending while displaying any symptoms of an illness. Childcare facilities are diligently following these rules as part of their occupational health and safety obligations arising from COVID-19. These rules will result in many children being unable to attend daycare come cold and flu season forcing parents to stay home with their children. Employers are wise to start to put a plan in place to identify how they will deal with these absences in the Fall and Winter.