To Accommodate or Not?

As we are in the midst of the second wave with winter fast approaching, human rights issues and requests for ‘work from home’ accommodations are sure to be abundant.    

When can employees take an infectious disease emergency leave (“IDEL”)?

Under the Employment Standards Act, 2000 (the “Act”) if employees are not performing their employment duties they can take an IDEL for any of the following 7 reasons:

1. The employee is under medical investigation, supervision or treatment related to COVID-19.  
2. The employee is following a COVID-19 related order issued under the Health Promotion and Protection Act.
3. The employee is in quarantine, isolation (voluntary or involuntary), or is subject to a control measure of a designated public authority, and the quarantine, isolation or control measure was implemented as a result of COVID-19 related information or directions.   
4. The employee is under a direction from their employer in response to concerns that the employee might expose others in the workplace to COVID-19.
5. The employee is providing care or support related to COVID-19 to a prescribed family member.  Example circumstances that this reason covers are: the employee is taking a leave to care for their child whose school or child care was closed because of COVID-19; the employee did not send their child to school or child care out of fear the child would be exposed to COVID-19; the employee’s child was sick with COVID-19 or stayed home because of COVID-19 protocols at the school or child care; and the employee chose to keep at home a child who had a symptom that may relate to COVID-19 as a precautionary measure.  The employee can be providing the care or support in Ontario or in another province, territory or country.
6. The employee is directly affected by travel restrictions outside of Ontario related to COVID-19 and as a result cannot be reasonably expected to travel back to Ontario.
7. The employee is subject to an order that relates to COVID-19 under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (“ROA”).  An easy example is the ROA that took effect on July 24, 2020 that prohibits employees who work in a long-term care home from also working for another health service provider.  Where the employee has two jobs – one at a long-term care home and one at a retirement home – and is not working at one of the homes as a result of this order, the employee is entitled to take IDEL from the employer that they are temporarily not working for.

What are employees’ rights while on an IDEL?

The best way to analyze this situation – employees who take an IDEL are generally entitled to the same rights as employees who take pregnancy or parental leave. Such an analysis should be of assistance as it is a scenario that employers are likely familiar with.  Their job and right to return to work without penalty is protected. 

Will there be interactions with other leaves under the Act?

Yes.  Recall that there are also the following leaves under the Act: sick leave; family responsibility leave; family caregiver leave; family medical leave; critical illness leave; bereavement leave; and declared emergency leave (was available between March 17, 2020 and July 24, 2020 and will be available if there is another declared emergency during the second wave).

An employee may be entitled to more than one leave for the same event. Each leave is separate and the right to each leave is independent of any right an employee may have to the other leave(s).  You will need to know the different purposes of the leaves, their length and eligibility criteria. 

What are some human rights issues that may arise? 

In addition to interactions between leaves under the Act there is also interplay between the Act and protections under the Human Rights Code (the “Code”) as it relates to family status, disability or perceived disability, race, place of origin or ethnic origin.   

Under the Code, each situation must be evaluated on its individual facts.  That being said, there are some general principles to keep in mind:

• Employees are not automatically 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. An accommodation conversation about individual needs must occur, along with a review of whether there is a duty to accommodate under the Code or whether an unpaid IDEL is more appropriate in the circumstances.
• If an employee is not on IDEL, an accommodate request must relate to a protected ground under the Code.  There is no requirement for an employer to facilitate working from home.  That being said, happy employees are more productive employees.
• If an employee does not feel safe despite all appropriate health and safety precautions in the workplace, an employer is not required to facilitate a ‘work from home’ arrangement.  An employer can facilitate working from home if workable for the employer but there is no duty to accommodate to the point of undue hardship triggered unless the employee demonstrates the need for accommodation under a protected ground. If the Code is triggered, employees are not entitled to choose their accommodations.
• If an employee is requesting a ‘work from home’ accommodation because of a medical condition, the employee is obligated to cooperate in the accommodation process, and to assist the employer in understanding what accommodations may be appropriate in the employee’s individual circumstances.  Meaning – employees are required to provide medical documentation in support of their accommodation requests.   As always, determining whether protections under the Act and/or the Code are triggered in individual circumstances is stressful, complicated and likely requiring the assistance of an employment lawyer well-versed on all of the issues at play.  The end result could impact not only your legal liabilities as an employer but your employee morale and retention rates.

Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website.  Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.