When is fear of Covid-19 justification for keeping kids home from school and to what extent does an employer have to accommodate the employee’s preference? While we’ve discussed this and similar issues on the blog in the past few weeks, a recent family court decision sheds some light on how courts might treat this issue.
Disagreement About Going to School
In Chase v. Chase, a divorced mother and father disagreed about whether their son should attend school in-person or do online learning. No one in either household had an underlying medical condition which would make them more vulnerable to complications from Covid-19.
The pair, unable to agree, went to court and asked a judge to decide. The judge looked to two decisions from Quebec courts on the issue of returning to school during the pandemic. She found guidance from one the of the Quebec decisions:
“When the government decides to partially lift the containment measures linked to Covid-19 in order to allow, among other things, the resumption of academic activities at the primary level, there is no need for the Court to question this decision, unless one or the other of the parties demonstrates, by a preponderant evidence, that it would be contrary to the particular interests of their children to resume attending school, for example because of their condition health.”
The judge agreed with the Quebec court’s assessment and ruled in favour of the mother – that the son could return to in-person school.
Application to the Employment Context
Why are we talking about this family law case on an employment law blog? Well, because the Chase v. Chase decision suggests how a court or tribunal may treat an employee who needs accommodations at work because they don’t want to send their kids to school. Where the government has decided that kids attending school in person are safe, employees may not be able to successfully get accommodations from their employers because they want to keep their kids home. An important part of this analysis – discussed in the Chase case – will be whether there is a high-risk individual in the home or whether the child is high-risk. Presumably, should young Chase have lived with his grandparents the judge may have ruled differently.
The eligibility criteria for the new Canada Recovery Caregiving Benefit are also instructive. This benefit of $500 a week will be available in a variety of situations, including where a child cannot attend school or daycare under the advice of a medical professional due to being at high risk if they contract COVID-19. For more on this and the other post-CERB benefits check out our post here.
Get A Medical Note!
An employee who claims that they cannot send their children to school, or who cannot come into work in-person due to a medical concern should be asked to support this with medical evidence. If an employer is proceeding under government guidelines and advice, in most cases healthy employees should be required to work as directed without accommodations. The Chase decision suggests courts will support employers who take this position. When accommodations are truly necessary, employees should be able to support their specific needs with medical evidence. A small caveat, if an employee asserts their right to the unpaid Infectious Disease Emergencies Leave (“IDEL”), employers cannot require a medical note – however evidence reasonable in the circumstances is permitted. For more on the IDEL check out our post.
If you have questions about navigating Covid-19 and the world of work, get in touch for a consultation.
