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The Question

My son is in Grade 3 and should be attending school this fall, full-time with normal class sizes. I don’t feel comfortable sending him back to school under these conditions. I want to keep him home and home-school him, but it’ll be difficult to juggle alongside my work responsibilities. Is my employer obligated to accommodate my home-schooling schedule?

The First Answer

Lior Samfiru, employment lawyer, Samfiru Tumarkin LLP, Toronto, Ont.

If full-time schooling is being made available by the family’s local school board, then the employer is not obligated to accommodate your specific preferences. Your rights to family status accommodation require that you have no other option but to stay home with your children. What you have described will likely be viewed by the law as a preference, and therefore would not be protected by the Human Rights Code in Ontario. If your employer refuses to accommodate, and you refuse to go to work during regular working hours, you risk being deemed to have abandoned your job.

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The big problem for parents arises when parents choose to take advantage of remote learning for their children, which may require assistance from parents during their work day. While the government has indicated that this is a choice that parents have, an employer doesn’t have to accommodate choices because preferences are not protected under the Human Rights Code.

An employer only must accommodate requirements. If school is available full-time and has been approved by local health authorities, then it will be seen as incumbent upon parents to send their children back to school. Therefore, where a parent chooses not to send the child to school, and instead stays home to care for them, the employer may consider them to have resigned or abandoned their position if they do not come into work. If parents are working from home and ask for reduced hours to aid in home-schooling or remote learning, employers are not obligated to accommodate these preferences unless the parents have exhausted all other reasonable alternatives. Therefore, parents that wish to keep their child at home and also keep their job may have to find alternate child care or babysitting arrangements.

If the school board is only offering in-person school on alternate days, an employer will have to accommodate a parent’s child care obligations. This is because the parent is no longer simply expressing a preference, but now fulfilling a substantial parental obligation. This would attract the duty to accommodate under the Human Rights Code. If an employer does not accommodate child care obligations, the employee should speak with an employment lawyer to intervene.

The Second Answer

Linda Lim, barrister and solicitor, Taylor Janis LLP Workplace Law, Calgary, A.B.

Working parents have legal protection under human rights legislation. Employers cannot treat an employee differently due to a protected human rights ground, such as family status, which is the “status of being related to another person by blood, marriage or adoption” – this includes a parent’s child care responsibilities.

In some situations, a parent may not feel comfortable returning their child to school because the child is immune-compromised and therefore seriously at risk of exposure. If, as a result, the parent must stay home with that child because they cannot find alternate suitable child care, an employer has a duty to accommodate to the point of undue hardship. Whether you have a right to be accommodated will depend on many factors: is there a medical basis for not returning your child back to school? Is remote work possible? Are alternate child care options easily available? Does the school have proper health procedures in place for its students? These are just a few examples.

Accommodation will look different for everyone, and there must be co-operation between employer and employee in determining what is suitable and possible. There must also be a legitimate basis on which to request accommodation – it cannot merely be due to personal preference when alternate child care possibilities are possible. If an employee has legitimate grounds, then the employer must accommodate to the point of undue hardship, failing which, they could be faced with a human rights discrimination complaint.

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Given that each person’s situation is different, we highly encourage seeking legal advice prior to taking any action.

Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com

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