Strikes are being held by teachers in public high schools, Catholic high schools and elementary schools across the province.
The Ontario Secondary School Teachers’ Federation has been holding a series of weekly one-day strikes since early December, while the Ontario English Catholic Teachers’ Association and Elementary Teachers Federation of Ontario are expected to hit the picket lines for the first time on Jan. 20 and Jan. 21, respectively.
If you have children in any of these boards, you might be wondering where to take them next week while you go to work.
The Ontario government has announced it will pay parents whose children are affected by striking teachers ($25 to $60 per day, depending on your circumstances), but finding last-minute childcare can be difficult.
The good news is, if you absolutely cannot find adequate care for your child, taking them to work with you will likely be allowed. However, this depends on a number of circumstances and will vary from workplace to workplace.
Your rights as a parent and employee
“There are two potential sources of rights,” said Kevin Banks, director of the Queen’s University Centre for Law in the Contemporary Workplace.
One would be your employment contract, and the other would be the Human Rights Code.
“ says that the family status of parents has to be accommodated,” he said.
“The theory there is that because caregiving needs and obligations are part of family status, and family status is protected, an employer has to accommodate the employee’s caregiving needs up to the point where it would be an undue hardship on the employer.”
READ MORE: Where are Ontario teachers striking next?
Family status is a protected human right in every province and territory across Canada. It is part of the Human Rights Code, said Lior Samfiru, an employment lawyer at Samfiru Tumarkin LLP.
“Some provinces may call it the Human Rights Act, but every province has their own human rights legislation,” he said. “It’s very similar in every jurisdiction.”
Factors to consider
Whether you will be allowed to bring your child to work will largely depend on your workplace.
Banks says an employer’s resources and the nature of an employee’s duties are important factors.
“Most employers are not set up to be daycares,” Banks said.
The decision by your employer will depend on a few different aspects: “Is it a big or small employer? What are the needs of the workplace? Does the employer need the employee’s undivided attention continuously? Could it be dangerous?” Banks said.
It is probably easier — and safer — for someone who works in an office, as opposed to an assembly line, to bring their child to work.
Instead of allowing you to bring your child to work, your employer may offer you accommodation in another form, like working from home or a day off. It’s not necessarily up to the employee to decide the best form of accommodation, Samfiru said.
“The employer gets to decide that, as long as the need — which is to care for the child — is met,” Samfiru said.
“The employer may say ‘No, I’m not going to let you bring the child to work, but I am going to allow you to take a day off work without any penalty,'” he said.
If your employer still claims that it cannot make accommodations for you, it has to prove that trying to accommodate your family status has reached a point of “undue hardship.”
How the “undue hardship” part of the Human Rights Code is defined will be very context-specific.
“That could be a situation where the workplace is very dangerous you can’t allow a child to be in that environment… the employee must be there because they’re the only one that can operate the machinery,” Samfiru said.
If these one-day strikes were to develop into longer job action, it would be up to parents to make their “best efforts” to find alternative childcare.
“Parents will need to prove that they’ve asked family members, they’ve looked in the private market or that they are willing to spend a not-insignificant amount of money if needed,” Banks said.
“The employee has to do what they can before they’re able to claim there’s a conflict.”
The process of asking for accommodations
The first step to securing accommodations by your employer is to ask permission.
“This is not the kind of issue that comes up with enough frequency … so it’s very unlikely that employees would have contract terms that speak to this question,” Banks said.
“If there’s been a practice of bringing kids into the office and the employer has been fine with it for some time, it might be safe to assume that you can continue to do this, but otherwise, it probably requires a conversation.”
If your employer refuses, Banks recommends that you speak with your human resources department or, if your workplace is unionized, to a union representative. In these conversations, it’s important to show you’ve done your best effort to meet caregiving obligations.
If you prove that you have no other options, your employer is not allowed to deny you accommodation.
If they do deny you, “that would be a violation of the Human Rights Code,” Samfiru said.
If you feel your employer does violate your family status, you could file a complaint with the province’s human rights tribunal. That process takes time, Samfiru said, and it’s not always an option employees choose if they’re still working for their employer.
“In my experience, a lot of employers end up getting away with not providing accommodation for that reason,” he said.
“There’s no easy way for an employee to hold the employer accountable.”
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