CBC London asked Siskinds labour and employment lawyer Elizabeth Traynor if working parents will be obligated to return to work if they can’t find childcare as the province continues to ease the restrictions that have been in place for the past 12 weeks.
With schools and daycares closed and grandparents at risk, working parents have few options.
As Ontario begins lifting lockdown restrictions one by one, many parents are looking at a potential return to the office with a sense of anxiety.
The lockdown meant to control the spread of the coronavirus has unquestionably and perhaps irreversibly changed our lives in many ways. Meetings are virtual, the kids are at home, there are fewer interactions with people outside the immediate family and, even then, they tend to happen at a distance.
But as the province continues to ease the restrictions that have been in place for the past 12 weeks, some working parents face a dilemma as they confront the prospect of easing back into a more formal work environment: what to do with the kids when they’re still at home?
With schools and daycares closed and grandparents at risk, working parents have few options, especially single mothers who tend to carry a disproportionate share of the burden.
Women carry a disproportionate share of the burden
“This affects women uniquely,” said Andrea Gunraj, the vice president of public engagement at the Canadian Women’s Foundation, an organization that seeks to lift women out of violence and poverty and into leadership roles.
Gunraj said women are more likely than men to be single parents. Women are also more likely to have more unpaid responsibilities, such as childcare, eldercare, which gives them less time for paid work.
“What we’ve seen with the pandemic is a lot of women have had trouble keeping paid work. They were the first to lose their jobs and first to lose their hours at work. This has really just compounded their vulnerability,” she said.
According to Statistics Canada, of the more than three million Canadians who lost their jobs since the pandemic began in February, StatsCan says 1.537 million were women, while 1.468 million were men.
The situation doesn’t just create poverty for women, it might also keep a woman in a violent relationship when she’d rather leave because she’s dependant on her violent partner for income, which also puts her children in harm’s way.
Without government support for families, businesses or childcare, it leaves many single parents stuck between a rock and a hard place, but it doesn’t have to be that way.
Whether employers accommodate depends on the situation
“I think the practical answer is to talk to the employer,” Elizabeth Traynor, a management-side labour lawyer and partner with the Siskinds law firm in London, Ont. said.
“Have you looked at the alternatives, have you spoken with family members, can you leave your kids with neighbours?”
In the case of single parents, employers may have to put up with the fact the employee can’t come in, especially if they have no options, Traynor said.
“If that employee is a single parent with no family in town and no opportunity to find childcare that she or he feels is safe, then certainly that person is on protective leave,” she said.
Protective leave is something the Ontario government created when it invoked emergency powers at the start of the pandemic. Those powers made temporary changes to the Employment Standards Act, giving people who need to take care of children the ability to do so without fear of losing their jobs.
However, the employee looking to take that protective leave must make a reasonable effort to find alternatives for childcare, such as grandparents, neighbours, or even sharing duties with their spouse, Traynor said.
“Employers get to ask whether employee has made inquiries and taken reasonable steps themselves to try to come into work.”
“My advice to employers in most circumstances that if the employee has made reasonable efforts to find childcare and cannot, then there’s a legal obligation to accommodate that,” she said.
Even without the protective leave, Traynor said employers have an obligation to accommodate employees under the Ontario Human Rights Code, which protects people at work who need accommodation due to family status, including taking care of young children.
Traynor said there’s always the option of taking kids to work, but any professional environment that would be able to accommodate children would more than likely be able to accommodate parents working from home, which is what public health authorities have recommended until further notice.
Traynor said in most cases, employees and employers should be able to find a solution that works, but if it doesn’t and both sides end up going to court, lawyers really aren’t sure how the dispute might play out in front of a judge.
“We have no idea really. The answer is ‘we don’t know.’ This is unprecedented. We have no case law to rely on, there’s not really even an analogy to point to,” she said.
“The answer is going to depend on the particular facts in the particular situation. We can’t apply a standardized answer because humans aren’t standardized.”