As an increasing number of Alberta business begin to re-open and recall their employees to work under Alberta's
Relaunch Strategy, it is important for employers to be aware of their obligations to employees who may need to be accommodated due to their family status.
Under the Alberta Human Rights Act, employers may have a legal duty to accommodate employees on the basis of family status. This means that employers must take care to avoid discriminating against employees who have legally binding childcare obligations. Employees who find themselves caring for other family members as a result of the COVID-19 pandemic may also be entitled to enhanced protections under human rights legislation (i.e. employees providing care to an elderly or unwell parent due to COVID-19 or because their usual care provider is unable to attend to them).
While the duty to accommodate employees on the basis of family status is not a new obligation, this particular duty to accommodate may take on a new meaning for employees who have a responsibility to care for children who are not able to attend school, daycare or other childcare arrangements as a result of the COVID-19 pandemic. Case law in Alberta and around the country has consistently held that childcare obligations are properly considered as family status, and thus protected from discrimination or adverse effects based on unequal treatment.
Employers do not have an obligation to provide employees with the exact accommodation that they request. However, employers should take care to act reasonably in their search for an appropriate accommodation. The employee has a corresponding obligation to actively participate in the accommodation process. If the workplace is unionized, the union may also be required to participate in the search for an appropriate accommodation.
As with other forms of accommodation, an employer is not required to accommodate an employee if the accommodation would cause undue hardship. However, the employer must accommodate to the point of undue hardship. A variety of factors are considered when determining whether undue hardship exists, including financial cost, disruption to operations, impact on employee morale, health and safety concerns and others.
One form of accommodation which we have heard referred to on a number of occasions during the COVID-19 pandemic is to have the employee work from home. For some employers, this may be a reasonable accommodation, but for others, it may not be possible because of (among other possible reasons) the nature of the work. There is no right to work from home, and the employer is able to explore other alternatives with an employee, such as using existing vacation time or allowing the employee to take a leave of absence until childcare can be arranged. Employers should work with the employee (and union, if applicable) to find creative solutions that will allow the employee to meet their childcare obligations while also allowing the employer to continue to manage their workforce and operations.
As well, employers should be aware of temporary COVID-19 related changes to the Employment Standards Code. Ministerial Order 18.2020 created an unpaid leave for employees who have responsibilities to a child of theirs due to the closures of schools or daycares. Refusing to grant this period of leave to an employee who is entitled to it may lead the employer to be in violation of both the Alberta Human Rights Act and the Employment Standards Code. This new unpaid leave is scheduled to end on August 14, 2020, barring the government either extending it for a longer period or terminating it sooner.
In some instances, accommodating the employee my constitute an undue hardship. An employer who seeks to terminate the employment of a worker who cannot be recalled to work because of their legal obligations to care for a child may be putting themselves at risk of significant legal liability in the event of a successful human rights complaint or grievance. As the accommodation process can be complex and numerous employees may be seeking accommodations on various grounds, we highly recommend seeking the advice of an experienced labour and employment lawyer to assist in navigating your re-opening strategy.
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