September 3, 2020
by Israel Foulon LLP

Requests for Accommodation

Accommodation in the workplace is a shared responsibility. Employees must co-operate in the accommodation process. This means that an employee who is experiencing adverse consequences due to a workplace policy or rule must communicate their concerns to their employer. Equally, once an employer receives a request for accommodation, they need to proactively engage with the employee to identify and implement possible solutions.

In any given case, the appropriate form of accommodation will typically depend on the individual circumstances of the employee. Determining the appropriate measures requires both parties to communicate openly and honestly. However, it does not mean that an employee has the right to decide what accommodation they receive, or to demand a specific form of accommodation.

Family Status

Under the Ontario Human Rights Code (the Code), family status is defined as the status of being in a parent/child relationship, as well as the obligations that flow from that relationship. Accordingly, this may include an employee’s responsibility to supervise and provide care to their children during regular work hours.

In order to establish family status discrimination in the context of employment, the employee will have to do more than simply establish a negative impact on a family need. The negative impact must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work. Human rights jurisprudence has typically held that discrimination in the workplace occurs where the policy or rule interferes with a parent’s legal obligations to their child as opposed to a personal choice. Accordingly, an employee will not ordinarily be entitled to accommodation just because, for example, they are unable to access their preferred child care provider if there are reasonable alternatives available.

However, the legal test for determining whether an employee has experienced discrimination on the basis of family status is currently unsettled. Therefore, we recommend that you seek legal advice to discuss the specific facts surrounding these issues should they arise.

Back to School

With students heading back to school on September 8, parents have the option to enroll their children for in-class instruction or distanced learning at home. That does not mean that an employer is obligated to allow every employee to work from home to supervise their child’s remote learning, especially where doing so would have a negative impact on their business. 

An employer needs to ask questions, as the request for accommodation may engage other grounds under the Code, such as disability. For instance, if an employee or their child is immuno-compromised, it may be reasonable to allow the employee to continue to work from home if they are able to do so. An employer may also consider providing the employee with a modified work schedule or modified responsibilities where doing so would not rise to the level of undue hardship.

We recommend that employers approach each request on an individual basis and work directly with their employees to resolve any disputes that arise. Employers need to maintain an open dialogue and remain sensitive to the reasons underlying the accommodation request to ensure that they are not in breach of the Code.

We recommend that you seek legal advice if you have questions concerning specific accommodation requests.

Expanded EI Benefits

The federal government recently announced that most eligible claimants who are currently receiving the CERB would be transitioned to an enhanced EI program beginning September 27, 2020. To help individuals qualify for the expanded program, claimants will receive a one-time top-up of 300 insurable hours retroactive to March 15, 2020. The Expanded EI will provide a minimum of $400 per week for a period of at least 26 weeks of regular benefits.

The Creation of Additional Benefits

Additionally, the federal government has proposed legislative amendments to provide for the creation of three additional benefits to support individuals who are unable to work as a result of COVID-19. If passed, the new benefits will be administered through the CRA, take effect on September 27, 2020, and remain in place for a period of one year.

Canada Recovery Benefit: will provide $400 per week for up to 26 weeks for those who are not eligible for EI because they are self-employed or they work primarily in the gig economy.

Canada Recovery Sickness Benefit: will provide $500 for up to two weeks, for workers who are unable to work because they are sick or are required by public health officials to self-isolate due to COVID-19.

Canada Caregiving Benefit: will provide $500 per week for up to 26 weeks per household to eligible Canadians. Residents of Canada are eligible to receive this benefit if they earned at least $5,000 in 2019 or 2020 and they are unable to work because of the following conditions:

• they must take care of a child who is under 12 years of age on the first day of the period for which the benefit is claimed:

1. because their school or daycare is closed or operates under an alternative schedule for reasons related to the COVID-19 pandemic;
2. who cannot attend school or daycare under the advice of a medical professional due to being at high risk if they contract COVID-19, or
3. because the caregiver who usually provides care is not available for reasons related to the COVID-19 pandemic, or

• they must provide care to a family member with a disability or a dependent:

1. because their day program or care facility is closed or operates under an alternative schedule for reasons related to COVID-19
2. who cannot attend their day program or care facility under the advice of a medical professional due to being at high risk if they contract COVID-19, or
3. because the caregiver who usually provides care is not available for reasons related to the COVID-19 pandemic.

To view the Federal Government’s full outline of the expanded benefits, CLICK HERE.

Israel Foulon’s Response to COVID-19

Israel Foulon is assessing the situation as it evolves, and is taking all necessary precautions within its workplace. To slow the spread of COVID-19 and for the health of our team and clients, absent extraordinary circumstances we are working remotely until further notice whenever possible. However, please be aware that our offices remain open and are fully functioning. In the circumstances, we encourage our clients to contact us by phone and email to the extent possible. Voicemail messages left at our office phone numbers are immediately forwarded via email. All messages will be promptly responded to. We remain steadfast in our commitment to our clients and would be more than happy to assist you with concerns regarding COVID-19 or any other employment or labour matters.