Question: My child has been getting sick and frequently has to stay home from school. My employer told me that I could not miss any more work, but I have to be home to care for my child. Can my employer fire me?

Many parents have found themselves wondering how to balance work and child-care obligations since the COVID-19 pandemic began in 2020. Although COVID-19 intensified this issue, balancing work and child-care obligations has always been, and will continue to be, a challenge for parents.

Generally, as explained in more detail below, your employer cannot fire you due to child-care obligations. In fact, they have a duty to accommodate your child-care accommodations, which are protected by Ontario’s Human Rights Code (“Code”).

If you suspect that you have been terminated due to your child-care obligations, you should immediately contact an experienced employment and human rights lawyer as you could be entitled to both damages for breach of the Code and wrongful dismissal.

Protection under the Code

Child-care obligations are protected by the Code under family status. This means your employer must accommodate your child-care obligations up to the point of undue hardship.

However, whether your employer needs to accommodate you is contextual. The obligation to accommodate is not triggered in every instance, and it requires you to make reasonable efforts. For example, if you are asking for an accommodation due to childcare obligations, you should first make reasonable efforts to find childcare. If this proves impossible, you could ask for an accommodation.

Alternatively, if you are asking for an accommodation to attend your child’s weekly soccer game, it is unlikely that your employer is obligated to accommodate you. A key consideration is whether a failure to modify an employee’s hours or place of work would prevent them from caring for their children.

The duty to accommodate means that your employer has the obligation to change the way the workplace functions so you can fully participate in the workplace. In your case, this would mean adapting the workplace to allow you to perform both your work and child-care obligations. If you find yourself struggling to balance work and taking care of your children, you should immediately request an accommodation pursuant to the Code.

Accommodations are fluid and should be tailored to your specific situation. Common accommodations we see include:

1. Allowing you to work from home where feasible;
2. Allowing you to work alternate hours; and
3. Allowing you to take leaves from work if your child-care obligations are particularly onerous for a period of time.

Your employer must provide you with accommodations unless they can demonstrate it causes them undue hardship, and you have a legitimate reason for asking for an accommodation.  To determine if an accommodation measure creates undue hardship, both costs and health and safety risks may be considered. However, your employer cannot claim undue hardship simply because your accommodation results in some financial hardship. Rather, your employer would need to show the cost is so extreme that it seriously interferes with their business.

For example, if you can perform your work remotely, and you request this accommodation to fulfill child-care obligations, your employer cannot claim this is undue hardship. Failure to accommodate can amount to discrimination.

Your employer cannot terminate you due to child-care obligations

While your employer can always terminate you without cause, they cannot do so if it is wholly or in part due to your child-care obligations. If they were to do so, it would breach the Code, and you would be entitled to damages, in addition to the applicable wrongful dismissal damages.

If your employer is threatening to fire you because you are taking care of your children, they are likely breaching their duty to accommodate you under the Code. Further, if your employer follows through and terminates your employment due to your child-care obligations, this may not only attract damages for breach of the Code and wrongful dismissal, but possibly punitive damages as well.

Conclusion

Employers will often hide behind termination without cause to terminate employees they do not wish to accommodate. If you suspect your termination is in any way related to your child-care obligations, you should immediately consult an employment and human rights lawyer to ensure you are treated fairly.