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The Question

I have been working from home because of COVID-19 but I have two young children to look after. My partner and I have been splitting childcare responsibilities but it’s affecting both of our work schedules. I can tell my boss is getting frustrated because I’m missing deadlines. I’m worried that I’ll be demoted, fired or that my child-free peers will get ahead at this time. What can I do in this situation?

The First Answer

Elichai Shaffir, partner, Cavalluzzo LLP, Toronto

School closures and stay-at-home orders are putting incredible strain on parents. This is especially so for working parents who are finding it very challenging to cope with the increased demands of trying to entertain and educate their children while also holding down jobs.

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I appreciate that your boss may be frustrated. This is understandable. But what will hopefully give you some comfort is that employers cannot discriminate against employees on the ground of family status under human rights legislation. Practically speaking, in the context of COVID-19, this means that employers must accommodate employees up to the point of undue hardship for family and caregiving responsibilities that have arisen as a result of school and daycare closures.

What a reasonable accommodation looks like may be different based on each employee’s individual circumstances. Some accommodation options include working from home, altering work hours, compressing the work week, job-sharing or task-sharing arrangements, or a job-protected leave of absence. Employers cannot engage in a “one-size-fits-all” approach and must consider the unique needs of each employee requesting an accommodation.

Back to your situation. I would suggest that you stay in regular contact with your boss, to the extent possible. Request additional support (if this makes sense), or an extension to any upcoming deadline that may seem impossible to meet. Explain the reason for your request and highlight your willingness to explore alternative arrangements. If it’s simply impossible to balance your job with your childcare responsibilities, you may need to consider taking a job-protected leave of absence. Keep in mind that if this were the case you would be eligible for the Canada Emergency Response Benefit. At the end of the day, you cannot be demoted, fired or discriminated against because of your child-care responsibilities resulting from COVID-19.

The Second Answer

Nicole Veitch, associate, Allevato Quail & Roy

Performance issues, including missed deadlines, may give your boss justification to take the steps you are worried about. You can try pitching your boss constructive ideas that might make it easier to work uninterrupted, such as adjusting your hours, adjusting your work responsibilities or moving deadlines. If you come to an agreement, it’s a good idea to confirm that agreement in writing to make sure you’re on the same page.

In most provinces and federally, human rights legislation prohibits “family status” discrimination for essential child-care duties, but the legal test for that protection varies across jurisdictions. Even where there is a duty to accommodate childcare obligations, your boss is not necessarily obligated to make the exact changes you think would work best. You may want to obtain legal advice on whether there’s a duty to accommodate before negotiating changes to your work.

If you cannot find a way to adjust the work, you should consider whether you or your partner are able to take a job-protected leave. Many provinces have created unpaid leaves of absences for people who need to care for children because of COVID-19. If you are eligible for a leave, you might be eligible for the Canada Emergency Response Benefit for the duration of your leave, and you would be entitled to return to your job without penalty at the end of the leave. If you take a protected leave you may be asked to provide reasonable proof of your circumstances.

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