I want to home-school my child in September, will my employer accommodate me? – Globe and Mail

Is my employer obligated to accommodate my home-school schedule?

Lior Samfiru is a Canadian employment lawyer and co-founding partner at Samfiru Tumarkin LLP. He was asked by Andrea Yu in the Globe and Mail to provide his expert opinion on the matter as it pertains to the COVID-19 pandemic and schools re-opening in September. He touched on remote learning, the Human Rights Code of Ontario, and Family Status.

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THE QUESTION

My son is in Grade 3 and should be attending school this fall, full-time with normal class sizes. I don’t feel comfortable sending him back to school under these conditions. I want to keep him home and home-school him, but it’ll be difficult to juggle alongside my work responsibilities. Is my employer obligated to accommodate my home-schooling schedule?

THE ANSWER

If full-time schooling is being made available by the family’s local school board, then the employer is not obligated to accommodate your specific preferences. Your rights to family status accommodation require that you have no other option but to stay home with your children. What you have described will likely be viewed by the law as a preference, and therefore would not be protected by the Human Rights Code in Ontario. If your employer refuses to accommodate, and you refuse to go to work during regular working hours, you risk being deemed to have abandoned your job.

While the government has indicated that this is a choice that parents have, an employer doesn’t have to accommodate choices because preferences are not protected under the Human Rights Code. An employer only must accommodate requirements.

If school is available full-time and has been approved by local health authorities, then it will be seen as incumbent upon parents to send their children back to school. If a parent chooses not to send the child to school and instead stays home to care for them, the employer may consider them to have resigned or abandoned their position if they do not come into work. If parents are working from home and ask for reduced hours to aid in home-schooling or remote learning, employers are not obligated to accommodate these preferences unless the parents have exhausted all other reasonable alternatives. Therefore, parents that wish to keep their child at home and also keep their job may have to find alternate child care or babysitting arrangements.

If the school board is only offering in-person school on alternate days, an employer will have to accommodate a parent’s child care obligations. This is because the parent is no longer simply expressing a preference, but now fulfilling a substantial parental obligation. This would attract the duty to accommodate under the Human Rights Code. If an employer does not accommodate child care obligations, the employee should speak with an employment lawyer to intervene.