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With the second wave of Covid-19 upon us, new government benefits now in place and government business restrictions shifting, it is important for employers to be up to speed on key workplace legal considerations and compliance issues.  During our last webinar, we covered this very topic and were flooded with questions from employers.  Below is part 1 of a summary of the most common Q&As.

Question 1: Are employees entitled to an accommodation to work from home if it is a choice or preference to not put their kids in school, rather than a need based on health issues?

Answer: Employees are not entitled to a work from home accommodation by their employer if they prefer and choose to work from home because their kids are not in school (i.e. they’ve chosen online learning during Covid-19). A conversation about accommodation and the particular employee’s needs should happen, along with a review of whether there is a duty to accommodate triggered under the Human Rights Code.

One option for employees in this situation is to go on an Infectious Disease Emergency Leave (“IDEL”). Employers must grant employees this leave if their reason for taking it – among others – is taking care of kids. The IDEL is an unpaid leave, so an employee on this leave would not continue working or being paid.

Click here for more information on who is entitled to the IDEL.

Question 2: Outside of IDEL, does the employer have to accommodate an employee’s requests that are based on preference, and not actual need? 

Answer: No, if an employee is not on IDEL (i.e. the unpaid leave), an employer must accommodate an employee’s request for accommodation only if it relates to a protected ground under the Human Rights Code (e.g. family status, disability).

Question 3: What happens if an employee doesn’t feel safe (despite all the health & safety precautions taken in the workplace), and they want to work from home and are set up to work from home?

Answer: Again, an employer is not required to facilitate a work from home arrangement for an employee, but they can do so if the employer determines that it’s workable. 

In other words, there is no duty to accommodate in this scenario. However, if the employee is able to show that they need accommodations related to a protected ground under the Human Rights Code, the employer does have a duty to accommodate up to the point of undue hardship. While the employee is not entitled to choose their accommodation, work from home may be reasonable in some circumstances.

Question 4: In a context where employees are working from home, what is an appropriate response to a request from an employee who would like to work remotely from a different country to be with family during Covid-19, without there being an explicit caregiving duty between the employee and their parents?

Answer: An employer is not required to agree to remote work from another country unless the employee is in a parent child relationship with that family member (e.g. an elderly parent) and is providing care that would trigger protection under the Human Rights Code ground of “family status”.

Question 5: What if an employee works from home because of a medical condition, but we can’t ask for a doctor’s note? 

Answer: If the employee is requesting an accommodation related to a medical condition (i.e. a disability – which is a protected ground under the Human Rights Code), then the employee has an obligation to cooperate in the accommodation process, and to assist the employer in understanding what accommodations may be appropriate in light of the employee’s restrictions and prognosis. In this scenario, an employee would be required to provide medical documentation in support of their accommodation request.

Question 6: Can you summarize the main scenarios when IDEL will apply? 

• Employee is in quarantine or isolation by a direction issued by doctor, nurse, Telehealth Ontario 
• Employee is caring for a child/family member because of a matter related to Covid-19
• School or childcare is closed because of Covid-19 or because the employee did not send their child to school or childcare for fear of exposure
• Caring for a child who is sick with Covid-19 or who stayed home because of Covid-19 protocols at the school or child care (e.g. symptoms)
• Child had a symptom that did not automatically require the child to stay away from school or child care, but the employee was concerned the symptom may relate to Covid-19 and chose to keep their child home as a precautionary measure
• Same concepts apply broadly to family members

The ripple effect of shifting government restrictions and an approaching Canadian winter will be significant for many employers. Stay tuned for Part 2 of our 2nd Wave Workplace Law Q&A next week.

We know the many related legalities and issues are top of mind for businesses. We invite you to join us for our next webinar, “WINTER IS COMING! Covering Your Employer A*$ as We Head Indoors” during which we will continue the conversation and delve into a) employee leaves,  b) liabilities if your employee or customer gets sick, c) seasonal layoffs and terminations, and d) other Q&As.

If you have specific questions or concerns about your workplace as we head into winter, get in touch.