While talks continue, there is no immediate end in
sight for the ongoing teachers' strike. For employees with
school-age children, this may mean facing a child care gap starting
next week. As an employer, what are your legal obligations and what
can you do to make sure work continues while school's out?
The Legal Framework
First, the Employment Standards Act provides all
employees in the province with up to five (5) unpaid days of family
responsibility leave each year for the care, health and education
of a child in an employee's care. Employers do not have the
discretion to deny the leave, but can and should ask for sufficient
information to confirm the employee's entitlement to it, such
as the identity of the person for whom they are caring, the
relationship and the reason for the leave. That said, employers
should be sensitive when challenging employees' reasons,
particularly in the current circumstances.
Second, the Human Rights Code prohibits
discrimination in employment on the basis of family status. While
the extent to which child care obligations are protected is still
in flux (previously discussed
here), employers should take a flexible but informed approach
to employees' requests for accommodation due to child care
obligations. We recommend that employers ask for sufficient
information to determine the nature of the employee's child
care needs and the extent to which they are affected by his or her
employment obligations. For example, an employee who is able to
arrange adequate child care through family, friends, neighbours or
public or private programs in order to attend work should be
expected to do so before requesting any accommodations. This is
particularly true since the government has offered to pay families
$40 per day for each child under 13 years old
to cover additional child care expenses. However, if an employee
has no alternate child care options, then employers should consider
a reasonable accommodation. If there is no workable accommodation
that will suit the employer, the employer may provide the employee
time off without pay.
Accommodating a Child Care 'Gap'
The nature and extent of any accommodation will depend on the
employer's requirements and policies, and the employee's
needs, but accommodation may include:
Working from home or tele-commuting;
Providing or facilitating group child care at or close to the
workplace (employers should get advice before initiating such an
Allowing employees to bring their older children to work for
some or all of the day;
Flexible or reduced work hours;
Using vacation or other paid personal leave (if provided under
the employment contract or collective agreement); and/or
Finally, it is important to ensure that employees who work
off-site continue to accurately record their hours and are reminded
not to work any unauthorized overtime.
We will continue to keep you updated on any major developments
with respect to the teachers' strike and its impacts on other
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).