With schools returning to in-class learning, it’s only a matter of time until kids will be sent home for reasons related to COVID-19, once again putting parents in the impossible position of having to juggle childcare with work responsibilities. Those parents have some options to legally take time off work to take care of their children while remaining employed.[1]
- Leave of Absence
There are a number of leaves of absences parents may be entitled to under Ontario’s Employment Standards Act (“ESA”) which would allow them to tend to their childcare responsibilities during the pandemic while remaining employed. For example:
- Unpaid Infectious Disease Emergency Leave
Employees are entitled to take an unpaid leave of absence from work (called an Infectious Disease Emergency Leave, or “IDEL”) if they can’t work because they’re caring for their children for reasons related to COVID-19. This includes:
- Caring for a child who is sick with COVID-19;
- Caring for a child who stayed home because of COVID-19 (eg. they exhibited signs of illness and either were advised to stay home, or the employee chose to keep their child home as a precautionary measure);
- Caring for a child whose school/childcare is closed due to COVID-19;
- Caring for a child because the employee did not send them to school/childcare out of fear they would be exposed to COVID-19;
- Taking a child to get vaccinated or caring for them while suffering side effects from the vaccine;
- Caring for a child because their babysitter is in quarantine, isolation or sick because of COVID-19.
Employees are entitled to take IDEL for as long as they are unable to work for the reasons outlined above.
- Paid IDEL
Employees are also entitled to three days of paid IDEL because they are caring for children who are:
- Physically or mentally ill for reasons related to COVID-19;
- Getting vaccinated or suffering side effects from the COVID-19 vaccine; or
- Are in quarantine/isolation due to COVID-19.
Note that the eligibility criteria for paid IDEL are narrower than those for unpaid IDEL.
The paid IDEL entitlement is also conditional upon the employee’s contract not providing them with a similar entitlement. If an employment contract does contain a similar entitlement, the contractual entitlement will reduce the statutory entitlement. Otherwise, if the contract does not speak to a paid leave similar to paid IDEL, the employee can receive the statutory entitlement, which would provide them with the lesser of $200 per day or the regular wages they would have earned had they worked.
Where an employee is entitled to both paid and unpaid IDEL, they are entitled to receive the paid entitlement first, unless they opt not to do so.
- Additional Leaves
There are a number of other leaves available to parents in Ontario, such as:
- Family responsibility leave, which is three days of unpaid leave to care for a child who is ill, injured, has a medical emergency or urgent matter. An “urgent matter” is considered an event that is unplanned or out of the employee’s control, such as a babysitter calling in sick.
- Family caregiver leave, which iseight weeks of unpaid leave to care for, or support, a child who has a serious medical condition, such as COVID-19. Providing “care” and “support” includes psychological or emotional support, as well as arranging for care by a third-party.
- Family medical leave, which is28 weeks of unpaid leave to care for, or support, a child who has a serious medical condition with a significant risk of death occurring within 26 weeks.
- Critical illness leave, which is 37 weeks of unpaid leave to care for, or support, a critically ill child.
Each of the above-noted leaves, including the IDELs, are separate and parents may be entitled to more than one leave for the same event (such as a child being sick with COVID-19). There is no pro-rating of the leaves (ie. parents who begin to work part way through the year are entitled to the full leave). The leaves may be taken in full or partial days and periods of more than one day.
All of these leaves are job-protected – meaning parents are entitled to be reinstated into their former positions, or a comparable one if they no longer exist, following the leave. Parents further cannot be reprised against by their employers for taking or intending to take these leaves.
While these leaves are not required to be paid (other than the paid IDEL), there are financial supports available to parents who take them through the Employment Insurance program. For more information on those benefits, visit the Employment Insurance website.
- Accommodation
Parents can also ask their employers for accommodation so that they can tend to their childcare obligations while they continue to work.
Under Ontario’s Human Rights Code, an employer may be required to accommodate a parent’s childcare obligations if a workplace rule (eg. certain work hours, the requirement to attend the workplace in person, etc.) discriminates against the parent based on their childcare needs. Accommodation requires the employer to adjust the workplace rule so that the parent can tend to their caregiving responsibilities without facing adverse treatment at work. For example, accommodation could require the employer to:
- Provide parents with flexible hours (such as compressed work weeks, flexible start and end times, or a modified work schedule) to allow them to take care of their children during work hours;
- Allow parents to work from home;
- Temporarily reduce their job duties.
Currently, there is a legal debate surrounding what an employee must prove to establish an entitlement to accommodation, but in general, employees should be able to show that the workplace rule negatively impacts their childcare need, resulting in a real disadvantage to either the parent-child relationship and the responsibilities that flow from that relationship, and/or their work.[2] Employees are also better positioned if they can show that they:
- Explored potential other solutions to meet their caregiving responsibilities before requesting accommodation from their employer (eg. they looked into hiring a babysitter, seeking support from a family member, or trading off responsibilities with a spouse, without success); and
- Cooperated with the employer in the accommodation process, including providing them with information surrounding the family need and working with the employer to identify possible solutions.
If accommodation is required, employers do not have to provide the parent with their preferred accommodation. All that is required is reasonable accommodation. Parents should therefore remain flexible to accept reasonable arrangements.
Like the statutory leaves outlined above, an employer cannot retaliate against a parent for requesting or intending to request accommodation under the Human Rights Code.
- Vacation and/or Other Contractual Entitlements
In addition to the above, parents may have accrued vacation and/or other entitlements under their contract that would allow them to take time off work or the flexibility to tend to their caregiving responsibilities. Although it may be too early in the year for 2022 vacation days to have accrued, employees may be entitled to have a certain number of unused vacation time carried over from 2021 that could provide them with paid time off work.
If you have any questions about the above or the laws that apply to your particular case, contact a lawyer at Turnpenney Milne LLP.
By Ozlem Yucel
[1] The statutory leaves and other legal entitlements listed in this article apply to employees who work in provincially regulated workplaces in Ontario. If you are unsure about which laws apply to you, or are a federally regulated worker and would like to learn more about federal employment laws, contact Turnpenney Milne LLP.
[2] Peternel v. Custom Granite & Marble Ltd., 2018 ONSC 3508.