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The chalk dust has not settled on strike action at Ontario schools: What’s an employer to do?

family status

By now you have all heard, whether from news reports or from your school board, that the thousands of CUPE members employed as custodial staff, early childhood educators, special education assistants and/or office administration staff of various School Boards reached an 11th hour agreement with the Province of Ontario which prevented wide-spread school closures across the Province.

The light of that announcement was quickly dimmed, however, by the confirmation that teachers and educational assistants across the Province remain without a contract at this time and are, themselves, in negotiations with school boards and the Province in an effort to reach and amicable agreement without striking this school year. School Boards have been communicating with their staff and parents about what this means for them. As with the anticipated CUPE strike, in many cases school closure due to a labour strike means programs run in schools, including before and after school programs, will also be cancelled and unavailable.

And while parents may once again find themselves scrambling to make arrangements for their children – emergency childcare, camp registration, calling on family members – employers question what will happen at their workplaces if their workers have to tend to matters at home in a school shutdown. What can they ask of their employees, and how can they ensure they have reasonable and sufficient staffing levels to meet their production, operational and business needs?

In addition to what may be the obvious and easiest alternative of using floater days and/or vacation days, there are other options that employers must make available in the event of a school strike.

Family Responsibility Leave

The Ontario Employment Standards Act, 2000 provides employees who have worked for their employer for at least two consecutive weeks with up to 3 Family Responsibility Leave days each calendar year. These days are unpaid and can be taken where the employee is faced with the illness, injury, medical emergency or urgent matter relating to a family member, including their child.

An urgent matter is defined as “an event that is unplanned or out of the employee’s control, and can cause serious negative consequences, including emotional harm, if not responded to.” The Ontario Ministry of Labour expressly references the case of a babysitter calling in sick as an “urgent matter” for which a family responsibility leave day may be taken. As an event that is out of the employee’s control, it is certainly arguable that the closure of a school may be an urgent matter for a parent to address.

That said, a school closure due to a teacher strike may not be “urgent” since parents will be provided with advance notice of any strike action and resulting school closure allowing them sufficient time to ensure their children have care, or a place to go, in lieu of attending school.

In addition, most parents likely have emergency childcare in place as a standard backup to address when their child gets sick or otherwise needs to be away from school. As a practical matter, employees should exhaust these backups first. Those not able to make arrangements, or who are unable to meet the cost of additional childcare or camp opportunities, may still rely upon Family Responsibility Leave as a means to address their needs.

Notice requirements

Employees must notify their employer of their intention to take a floater day, vacation day or Family Responsibility Leave day before starting their time away from work. Notice of floater and vacation days are generally governed by the written policies and practices in the workplace, while notice of an employee’s intention to take Family Responsibility Leave may be verbal or in writing.

Unlike a floater or vacation day, however, if an employee has to begin their Family Responsibility Leave on short notice (and is unable to notify their employer), the employee does not lose their right to the leave if they fail to do so. Rather, they should proceed to notify the employer as soon as possible after the leave has commenced of their intention to take their leave entitlement.

Accommodation of child care responsibilities

Last minute changes to an employee’s childcare obligations may also trigger the employer’s duty to accommodate based on Family Status, in accordance with the Ontario Human Rights Code. Family Status is a protected ground under the Code and is defined as “being in a parent child relationship” or a parent and “child type” relationship which includes relationships beyond “blood” based on “care, responsibility and commitment”, such as an adoptive or step-parent, foster parents or a legal guardian. Employers will no doubt be met with requests to accommodate employees’ childcare obligations with changes such as changes to work schedules or immediate time off.

Accommodation requests based on Family Status will arise where, as with a strike, parents contend they are unable to meet their family and/or childcare obligations (particularly during the hours the child may normally be in school) because of their job requirements. As with requests for accommodation based on other protected grounds under the Code, employers are required to accommodate the employee up to the point where this causes undue hardship to the employer. So, if and when employers are faced with these requests, how should they respond?

Employers must consider each request for accommodation on an individual basis and should work with their employees to find a solution. A solution for one employee may not be a solution for another. That said, the employees are equal participants in the accommodation process and must explore and investigate options available beyond the obvious one of “I must stay home” before requesting accommodation. This includes investigating childcare options which do not interfere with their ability to attend for work which may result in increased or unexpected costs (i.e., hiring a babysitter or registering your child for a camp). After all, an employee’s personal preference (i.e., a preference to stay home) is not what is to be accommodated. Instead, it is the employee’s obligation to provide childcare which is to be accommodated where other alternatives have been exhausted or are not available. Therefore, where temporarily providing an employee with flexible work hours, allowing employees to take unpaid time away from work, or allowing alternate work arrangements, such as tele-commuting, during the course of the strike does not provide undue hardship, it may be an appropriate form of accommodation. This is, of course, keeping in mind the practical and real impact of the form of accommodation on other employees in the workplace and the employer’s ability to carry out its business operations. After all, with the students who will be without a place to go during the hours of 8:00 a.m. and 3:30 a.m. in the event of Province-wide school closures, employers can anticipate receiving a large number of requests for accommodation. It is not reasonable that all employees be permitted to leave their workplace at the same time, leaving the employer with no employees to operate or significant disruptions to their business. This is why employees and employers must work together to find agreeable solutions which provide the employee with the same level of benefits and opportunities as other employees, including the opportunity to work while meeting their childcare responsibilities. For example, an employer with a large number of potentially-absent employees may offer accommodation in the form of a revised work schedule which calls for the employee to work from home 2 to 3 days during the week and seek paid childcare options the remaining weekdays in order to alternate of “hotel” with other employees who are also seeking accommodation. Regardless of the decision made, employers are advised to always document their discussions with employees requesting accommodation, their response to these requests and the reasons if the request is denied.

PH tips

So, will there be a teachers’ strike? I guess we will wait and see. Employers are advised to:

  • Communicate with their employees about their expectations as well as their needs to ensure sufficient staffing levels throughout any strike action; and
  • Recognize their accommodation obligations for parents who are unable to use alternatives, including for children living with disabilities;
  • Document all accommodation discussions with their employees; and
  • Consider offering alternatives to taking time off including: 
    • Arranging group childcare options for working parents;
    • Offering alternate days off to working parents who can share childcare responsibilities with their coworkers; and
    • Making work-from-home and flexible work alternatives available to working parents to minimize the impact on the business.

By Cynthia Ingram

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Prominent Canadian lawyers Patrizia Piccolo and Jennifer Heath have come together as Piccolo Heath LLP, Canada’s newest employment law firm. With more than 30 years combined expertise, the firm was founded with the purpose of delivering outstanding legal counsel and dynamic, client-focused service. Piccolo Heath LLP is focused on guiding clients through the legal landscape to determine the best solutions to their unique issues. The firm is well-versed in current employment-related case law and statutes, but is also highly sensitive to the practical impact of the law on both employers and employees. Read more.
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