Employee Rights: Returning to Work When Childcare is Limited

As Alberta continues to reopen, more employees are returning to work. It’s challenging, though, for parents who have children without the childcare that was available pre-COVID-19. Some childcare facilities are not currently operating at full capacity.

As an employee in Alberta, what are your rights when returning to work with limited childcare? To find out, we must refer to the Employment Standards Code and the Alberta Human Rights Act.

Employee Rights to Family Responsibility Leave

The Employment Standards Code governs employment law in Alberta. Under the Code, if you’ve been employed by your employer for at least 90 days, you are entitled to up to 5 days of unpaid leave in a calendar year if it’s necessary for your own health or for your responsibilities to a family member (which includes your child or any child to whom you are a legal guardian).

Those 5 days are not enough during the current pandemic situation, so the Government of Alberta has amended the Code with the following variance and exemption:

“An employee is entitled to unpaid leave for the period of time that is necessary to meet the employee’s family responsibilities in relation to:

  1. A family member who is under quarantine as a result of COVID-19, or
  2. A child who is unable to attend school or child care services as a result of any recommendations or directions of the Chief Medical Officer with respect to COVID-19.”

If you need to exercise your right to unpaid leave to care for your child due to COVID-19, you are obligated to provide your employer with reasonable verification of your entitlement to leave “as soon as is reasonable and practicable in the circumstances”.

Benefits of Family Leave During COVID-19

Employers are not always required to agree to a work-from-home arrangement and a family leave due to reasons related to COVID-19 is typically unpaid. So how does your right to family leave benefit you when your childcare options are limited?

The obvious first benefit of a family leave in this situation is that you get to keep your job even if you’re unable to return to work because you don’t have childcare. Other benefits include:

  • Continued recognition of your position and seniority during your leave,
  • Continued benefits, and
  • The right to be reinstated to your position or a comparable position if your previous one no longer exists upon your return.

Employee Rights Under the Alberta Human Rights Act

The Alberta Human Rights Act dictates that your employer has a duty to accommodate your need to take leave because of the Act’s prohibition of discrimination based on family status: “An employer is required to provide reasonable accommodation in situations where an employee’s family status interferes with their ability to perform their duties in the workplace.”

The accommodation might be an unpaid leave or an arrangement that allows you to work from home with more flexible hours.

The Act also states that employees who have caregiving responsibilities should be accommodated to the point of undue hardship for the employer.

Undue hardship refers to “onerous conditions for an employer such as intolerable financial costs or serious disruption to business.” So unless your unpaid leave to care for your child will result in major financial costs or business disruption for your employer, they are obligated to accommodate you.

Do you qualify for family leave based on family status?

For any federally regulated employee, there are four key criteria that must be met to qualify for accommodation based on family status:

  1. The child must be under your care and supervision.
  2. You are legally responsible to care for the child. It must not be just a personal choice.
  3. You must first make reasonable efforts to self-accommodate (such as finding alternate childcare).
  4. Your workplace requirements interfere with the fulfillment of your childcare obligation in a substantial way.

However, the Government of Alberta takes a different approach. Instead, there are only 3 things you need:

  1. Membership in a protected group (in this case, family status)
  2. Adverse treatment
  3. The protected ground of discrimination (family status) was a factor in the adverse treatment

To put it simply, if you require a leave from work when you need to care for your child because of limited childcare availability due to COVID-19, but your employer refuses to accommodate you, your human rights may have been violated.

You do not have a right to family leave if it’s simply your own personal choice.

Would your leave cause undue hardship to your employer?

Your employer’s duty to accommodate only applies if it will not cause undue hardship to your employer. There are a few things you and your employer will have to consider to determine if your leave is a possibility such as:

  • Is a work-from-home arrangement feasible? If so, your employer can accommodate your request to work from home so you’re able to be there for your child at the same time. If your work requires tools and resources that are only available at your physical workplace, a work-from-home accommodation is not a realistic option.
  • Can you work effectively while providing childcare at home? This is a very individual issue that will have to be determined together with your employer.

There is a distinction between a temporary arrangement and a permanent one. If your employer agrees to accommodate a temporary work-from-home arrangement, that does not mean it would not cause undue hardship indefinitely. The temporary arrangement would likely be considered an exceptional or emergency scenario that would not be tolerable long term.

Take Care of Your Family Without Losing Your Job

You want to keep your job and you want to take good care of your children. As an employee in Alberta, you do have rights that can protect both of those desires.

If you’ve been recalled to work and you no longer have the necessary childcare, know your rights. If you think your rights may have been violated by your employer, we can help.

The employment law attorneys at Osuji & Smith Lawyers can help you determine what you qualify for in terms of workplace accommodation and family leave during COVID-19. Consult with one of our employment law experts today.

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