Howard Levitt: Want your kids to attend school online? Here’s what the law says about you returning to the office

If an employer requires employees to return to work, return to work they must or be fired.

Reopening schools is the next major stage as provinces and territories slowly continue to open up and the country tries to return to its way of life before COVID-19. That stage is fast approaching as Labour Day is almost upon us.

Some provinces, such as Quebec, New Brunswick and Saskatchewan, are implementing mandatory in-class attendance when school doors reopen, while Ontario and British Columbia are requiring school boards to provide both full-time remote learning and classroom attendance options. Although the guidelines vary, some class sizes will be reduced in some areas, and some will allow a mix of online and face-to-face teaching.

But millions of parents now face a difficult choice: Do they send their children back to school or continue online learning? Many school boards are conducting surveys or asking parents to quickly make firm decisions since Sept. 8 is near. This choice will have a direct impact on parents currently working, as well as those whose employers are recalling them to work, especially if it’s to a physical office.

Some employees believe that they should be able to remain at home with their children if they choose online learning, even if their employers ask them to return. A recent Leger poll found that 40 per cent of Canadian parents intend to keep their children home, at least initially. But most can’t.

For many parents, the ostensible educational choice of remote learning for their children is illusory. If the employer requires them to return to work, return to work they must or be fired for cause for abandonment, unless they have no childcare alternatives — that is, no other parent,  grandparent, affordable caregiver, etc. — other than remaining at home.

If they have no alternative, and their employer cannot find childcare for them, parents are permitted to remain at home with an unpaid leave of absence and cannot be fired for doing so, until school/daycare is available to them, as long as that takes. Indeed, if the employer chooses to fire them, they have a wrongful dismissal case and will recover additional damages, and potentially reinstatement for the violation of human rights legislation.

Even if in-class training is not possible and the children must stay home, under human rights legislation, if the employer puts forward a reasonable alternative proposal — such as offering a more flexible work schedule or providing options such as daycare at the office for young children — the employee has a duty to cooperate and accept it.

Reciprocally, if the employee claims they must stay home to look after their children, the employer has the option of finding daycare or schooling for them and, if it is reasonably close to their home or office, the employee must accept that offer or be deemed as having abandoned their employment.

Even those employees who are permitted to continue working from home and elect to have their children learn online are obligated to provide their full attention to their work responsibilities during working hours, and their children’s online schooling cannot impact on the performance of their duties. If it does, they are entitled to an unpaid leave of absence instead without fear of discharge.

The other legal wrinkle concerns employees who cannot find daycare/schooling so they must personally look after their children, but can do so while still working effectively from home. In that case, if their work permits them to perform an uninterrupted full day and provide productive value to their employer, human rights legislation requires the employer to accommodate that and permit them to work from home and be paid, rather than taking an unpaid leave.

Naturally, parents are concerned about the health and safety of their children and many would prefer their kids to continue online learning while they work from home, just as they were permitted in the early stages of the economic shutdown. However, employees are increasingly facing recall as the country moves through its various reopening stages, and more businesses are allowed to require them to return.

The obligation to attend work when recalled even extends to school pickups and drop-offs. If busing is available to take students to school, and most school boards across Canada will be offering that, parents do not have the right to change their work schedules to facilitate the personal pickup and drop-off of their children at school.

Finally, what about teachers? Can they refuse to attend the classroom? The answer is, like any other employee, no, unless they can prove that the workplace is objectively unsafe.

If they challenge the safety of the workplace, ultimately, either they or the school board can invite an inspector to determine the workplace’s safety. If the inspector determines it is safe (and almost all rulings across Canada have gone in favour of employers), the teacher must return or face discharge for abandonment, that is, if the school boards behave like many private-sector employers and proceed to dismissal.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.