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Help for parents when kids stay home from school.

Stuck in a bind? There’s a leave for that

The uncertainty of future school strikes in Ontario has put parents and employers across the province back into a panic. Will kids be out of school again and will parents need time off work to care for children while on-line learning is implemented?  While schools have now reopened for the time being as talks continue, parents understandably feel uneasy about the prospect of having to juggle work and homeschooling, especially if they are unable to work from home and unable to afford or access private childcare. How can a parent be forced to choose between the need to care for their dependent child, and a job that pays for that child’s food, clothing, and shelter?

Parents should not be forced to make that choice, but many do not realize that their job is protected in these scenarios. Between the Employment Standards Act (“ESA”) and Ontario’s Human Rights Code (the “Code”), there are leaves and protections that can help ensure a parent does not have to worry about their job security while scrambling to secure urgent childcare.   So, what are a parent’s legal rights and responsibilities if they’re faced with an urgent childcare crisis? Here are a few options available:

While most Ontarians know about some of the more popular leaves available under the ESA, such as pregnancy and parental leaves, there are several other job-protected leaves available for Ontarians in various circumstances, including the Family Responsibility Leave.

Family Responsibility Leave

The Family Responsibility Leave allows Ontarians up to three days of unpaid, job-protected leave in the event of a family illness, injury, or urgent matter relating to their family (spouse, parents, children, siblings, or other dependent relatives). While this often involves unforeseen medical emergencies, it also applies to urgent matters like a babysitter calling in sick, or an appointment at a child’s school that needs to happen during the day.

This leave is designed to specifically recognize that sometimes unexpected life events happen, and we may need to attend to urgent family matters. It is important to note that if you need a half-day, for example, to take your child to an important appointment in the morning, then the employer can count it is as one full day of the three days of allowed leave. 

The Family Responsibility Leave requires employees to inform their employers about any necessity for leave ideally ahead of time, or at least as soon as possible after starting said leave. Notice does not need to be in writing (verbal notice is fine), and employers can ask for proof that is ‘reasonable in the circumstances,’ although they cannot ask specifically for a medical note or any confidential medical information. 

It is also important to note that an employment contract might build in additional leave above and beyond this minimum legal requirement or might specifically designate paid sick days that can be used for childcare purposes. In that case, an employee who uses those privately paid days is considered to have used their Family Responsibility Leave days at the same time.

Family Status Discrimination

While the Family Responsibility Leave provides a short-term job-protected leave for employees covered under the ESA, the issue of family status discrimination is a broader protection that exists for employees at both the provincial and federal level.

Family status is a protected ground under human rights legislation like race, creed, sexual orientation, disability, and many others. The law defines it as being in the status of ‘a parent or child relationship,’ and it means that you cannot be discriminated against by your employer for having a dependent parent or any dependent children.

The law has been mixed on how to handle these situations. For the past several years, one of the leading federal decisions laid out a framework for family status protections, including that the child must be in your care, they must be dependent on you for their needs, and there must be no other reasonable alternative for their care. In other words, this would allow parents protection for taking their child to the doctor but may not provide protection for every softball game or dance lesson.

However, there are also cases that have come from Ontario’s human rights tribunal in recent years that are less rigorous in their standards and say that family status should be treated like any other protected ground. An employee with a disability is not granted protection based on the severity of their disability, and an employee of colour is not granted protection from racial discrimination depending on their specific race, so family status should be no different.

Practically speaking, family status protections do not normally allow a parent to attend every single event, and working parents are generally required to find long-term childcare or elder-care solutions. However, it does require employers to accommodate in case an employee might need a scheduling modification to drop off or pick up young kids, or if they are required to leave early on certain days to help look after an elderly parent. 

The reality for employers is that not unlike other human rights grounds, family status accommodations may require them to stretch a bit. In cases of disability, for example, employers are required to accommodate to the point of undue hardship. This might mean making a workplace accessible, purchasing adaptive devices, or modifying an employee’s schedule so long as it is not detrimental to the business. 

The same is true for family status. Employers may be required to amend schedules slightly to help meet these needs, and the law requires them to do so, even if it may be inconvenient. However, employee must also work with an employer to explore all possible solutions that would allow them to continue to perform their job functions.  This dialogue of potential accommodations ensures that parents have a full and equal opportunity to contribute to the workforce while still being able to care for their families. 

Final Thoughts

An urgent situation such as a sudden school strike may be inconvenient, and it can understandably send parents into a panic. It also places stress on employers when they require employees to attend the workplaces in order to maintain daily operations.  When faced with an emergency, parents can take a deep breath, knowing that they have legal protections to ensure an urgent need for childcare does not cost them their job.

We work with employers and employees throughout the Cambridge, Kitchener, and Waterloo region to help them understand their rights better and make informed policies and decisions that benefit everyone in the workplace. Contact us today to set up a consultation.