September 24, 2020

As public health experts warn that the pandemic will continue for some time and with the potential for more stringent restrictions in the event of a second wave, the juggling that many did in the first days is proving to be unsustainable, with many workers requiring family status accommodations. What measures can be put in place to help support employees who have childcare and eldercare responsibilities? Are employers required to accommodate workers who choose to keep their children out of school or seniors out of respite programs due to the risk of contracting the virus? In this audio conference, seasoned experts will consider whether the COVID-19 pandemic has altered the landscape for family status accommodation, addressing issues such as the following:

  • How does the test to establish family status discrimination differ between jurisdictions? How do recent amendments to employment standards legislation impact the rights of workplace parties with regard to family status issues? Must a worker’s family responsibilities be extraordinary or unusual in order to establish a prima facie case? Are adjudicators likely to find that reduced or lack of availability of childcare or eldercare supports during the COVID-19 pandemic is sufficient to establish a need for family status accommodation?
  • Are there standard questions that employers should request or information that workers should be prepared to share about their needs in order to establish whether an accommodation is required and is suitable? Can workers simply indicate that their usual caregiving options are not available, or will be they be required to provide more detailed information?
  • What are some examples of measures that could be taken to accommodate caregivers who are working from home? What about options for supporting workers who cannot work remotely due to the nature of their jobs?
  • How should workplace parties approach a situation in which employees who are working remotely aren’t as productive as they should be? Could a worker be required to take an unpaid job-protected leave in such cases? Are employees able to take such a leave if their child’s school or daycare is open or if respite care is available?
  • Are employers required to accommodate workers who choose not to send their children back to school when they reopen or not to make use of in-home care or respite programs for elderly family members if they are available? Can employers argue that the worker has failed to self-accommodate? Could the answer vary depending on whether the worker lives with or cares for family members who are at high risk of suffering adverse effects from contracting COVID-19?
  • Can employers argue that having to accommodate a number of employees at once constitutes undue hardship? It is easier to make a “floodgates” argument during a pandemic? What if the employer’s economic situation has deteriorated due to COVID-19?