What are your rights as a caregiver in COVID 19 situation?

Childcare services are one of the most required attention areas to navigate for employers during the COVID-19 pandemic. Schools and daycare places were closed pushing many employees to balance working from home with childcare responsibilities. As confinements gradually release, businesses are ramping up and employees are returning to the physical workplace. In few cases, employers are facing resistance from employees who recommend that they cannot return to work on account of childcare responsibilities. Employers must tread carefully when faced with such circumstances.

The British Columbia Human Rights Code outlaws discrimination based on, 

·  amongst other things, 

·  physical disability

·   family status. 

The British Columbia Human Rights Commissioner confirmed that, in her opinion, the British Columbia Human Rights Code will apply to individuals who must care for children due to school and childcare closings. Therefore, employers must take steps to support employees who need time away from work to care for children up to the point of undue hardship. Unnecessary hardship is contextual but may be established where the accommodation is inordinately expensive or creates a health and safety risk. In short, employers should be careful when disciplining employees unable to return to work due to childcare options.

All that said, employee rights are not unrestrained. Employees must employ in the accommodation process. This means that employees should look for alternative childcare ifthey are unable to attend work due to childcare or school closures. Although not a COVID-19-related case, the British Columbia Human Rights Tribunal recently confirmed in Ziegler v. Pacific Blue Cross (No. 2), 2020 BCHRT 125, that parents must “explore the availability of alternative daycare options that would meet the parent’s child’s daycare needs” as part of the accommodation method.

Employers will also want to be aware that (as previously discussed here) the Employment Standards Act was recently amended to include job-leave protections for individuals who are away from work due to COVID-19. This new leave expressly includes employees who “need to provide care to their minor child or a dependent adult who is their child or former foster child for a cause related to COVID-19, including a school, daycare, or related facility closure.”

Employers should exercise caution when disciplining or terminating an employee given the above-noted protections. We see childcare protections becoming increasingly important moving forward. Sniffles, sneezes, and coughs will arrive alongside the cold and flu season. Most childcare facilities have a strict rule prohibiting children from attending while displaying any symptoms of an illness. Childcare facilities are diligently following these rules as part of their occupational health and safety obligations arising from COVID-19. These rules will result in many children being unable to attend daycare come cold and flu season forcing parents to stay home with their children. Employers are wise to start to put a process in place to check how they will deal with these absences in the Fall and Winter.