Some parents have had to make a hard decision this past month. To send their children back to schools offering in person teaching or go strictly online. Some parents are changing their minds and now deciding to take their kids out of in person teaching and go online. Some programs have gone strictly online and in those cases, parents have had to seek assistance from the employers in how to manage this “new normal” with kids at home. In many cases, employers whose operations have been remote for the past several months are looking to bring employees back to the office. What if an employee doesn’t want to send their child back to school  or can’t send their child back to school for health reasons or quarantined periods and subsequently insists to an employer that they cannot come back into the office to work but want to continue working from home?

Employer’s Response

If an employee will not be sending their child to school and insists that they too need to remain at home, ask why. If the employee or the child has a legitimate disability-related COVID-19 exposure concern, or someone living in the house is high risk, such as the elderly or someone with a pre-existing medical condition, this should be accommodated to the point of undue hardship. Asking your employee why they are not sending their child to school allows them to raise their need for accommodation. 

If the employee states that someone has a medical condition or is high risk and this is the reason they do not want to return to the office, an employer can then ask for medical documentation to support that the employee should not send their child to school due to a medical reason. 

If an employee states that they just don’t feel comfortable or that they prefer to keep their child at home, this would likely not be a reason attracting accommodation. AHS has suggested that sending kids to school is relatively safe with safety protocols in place, so an employer can rely on AHS’ direction absent legitimate medical evidence specific to the employee to suggest otherwise. 

Accommodation

Under the Alberta Human Rights Act, if an employee provides a legitimate medically or mentally based reason for keeping their child home and needing to stay home themselves especially if its related to COVID- 19, an employer has a duty to accommodate this request to the point of under hardship. However, the accommodation does not have to be the one that the employee chooses.

These caregiving responsibilities, which relate to the Act’s protected ground of family status, could include situations where another family member is ill or in self-isolation, or where their child’s school is closed or quaratining due to COVID-19.

 While employers may have been flexible early in the pandemic, it is not reasonable for an employee to expect to be able to care for small children learning remotely and also work from home full-time. An employee in this scenario could be placed on an unpaid leave, on reduced work hours or an alternate schedule. The employer will generally have a duty to accommodate the employee up to the point of undue hardship.  

Employers should consider requests for accommodation in good faith. Employers should try to be flexible and consider not overburdening the health care system with requests for medical notes. Also, an employee who cannot work because of COVID-19 may be entitled to employee sick or disability leave and benefits offered by the employer or available under other federal or provinicial government benefit programs.

Where the employee insists that they cannot come back to work, but has not established a need for accommodation – they are keeping their child home out of preference and not for a substantiated medical reason – an employer may choose to offer the employee an unpaid leave or may choose to take the position that the employee is abandoning their employment by refusing to return to work. There is no perfect answer here, and while we as of yet don’t know how the courts and the Human Rights Commission would view this situation, where possible employers should try to be flexible. 

These crazy times are continually evolving for employees and employers and the legislation and rules related to employment in Alberta can be confusing. Please contact me to discuss your employment needs and we can definitely sort it out.