BALANCE

CHILDCARE A GROWING ISSUE IN WORKPLACE. THE KEY IS CO-OPERATION.

Accommodation for childcare obligations has become a particularly acute issue with many daycare centres unavailable and schools resorting to remote learning. The beginning of the new year will see this issue cropping up more, not less.

Employers cannot retaliate against employees who make family status accommodation requests and must protect their jobs if their childcare needs results in a leave of absence.

But what is often forgotten in discussing accommodation is that employers have a right to receive work in return for wages.

Employees who seek concessions for those childcare needs have a heavy burden. They must make best efforts to `self-accommodate' before being entitled to flexibility from their employers. That means taking all necessary steps to find other suitable childcare arrangements. When seeking accommodation, they must be able to document both their childcare related needs and the lack of alternative arrangements.

If they cannot, the employer can work with them to find such arrangements and, if successful, the employee must send their children to the new childcare provider.

There is no obligation to permit an employee to work from home by way of accommodating their childcare needs, unless it can be done productively. The arrangement may not be as productive as it would be in the office, but the employee must still be able to provide value for the wages they receive. In determining whether the job can be performed as productively from home, employers should take into consideration the level of care and supervision required such as the care for an infant as opposed to a child who is more independent.

Employers must receive sufficient information regarding the employees' childcare related needs and other potential available support to be able to determine the accommodation needed.

If an employee cannot work productively from their home, the employee is legally obliged to work co-operatively with the employer to find mutually agreeable solutions, which could include:

❚ Changing the employee's work hours and potentially splitting their shift so that someone else can care for their children while they are working;

❚ Changing the employee's days of work;

❚ Working to find alternative childcare arrangements; or

❚ Providing an unpaid leave of absence until they can find childcare.

I am dealing with a case at the moment in which an employee, whose wife has a full-time job as an essential

worker, insists on working from home while caring for both an eight-month-old and a five-year-old, in a job requiring attention and diligence. No employer need accommodate that and he has been provided the choice of an unpaid leave of absence until childcare can be arranged or the option of work hours when his wife is available to take care of the children.

If an employee refuses to take the requested steps to self-accommodate or participate in finding alternative solutions, the employer can offer an unpaid leave of absence until they find childcare or offer reduced hours of work and pay. If the employee

refuses to co-operate, companies can discipline them to the point of dismissal or, in the worst case, declare that the employee abandoned their employment.

I have seen employers make two critical mistakes in this process. First, is to not imply that a man's wife should automatically be responsible for childcare instead of him — that's illegal gender discrimination. Second, a disabled child or elder may have very specific needs and that must be taken into account.

Employees have the right to receive some flexibility from their company but it need not be perfect. Employers

too, have a right to an employee's time and attention. Employees should work co-operatively with their company to ensure they can find the right balance between their family obligations and job responsibilities.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com. Questions are edited for clarity and space. Howard Levitt is senior partner of LSCS Law, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.

If an employee cannot work productively from their home, the employee is legally obliged to work co-operatively with the employer to find mutually agreeable solutions.