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Homeschool again! The right to work from home or take leave during omicron

With back-to-school after the winter holidays postponed and COVID-19 infection rates high once again due to the omicron strain, January 2022 does not look how we expected. In fact, many employers and schools had penciled in January 2022 as an end to working from home and remote learning. For many, this is no longer realistic. What does this mean for your rights at work? Can your employer make you go back to the office? What if you are once again homeschooling your kids?

LAST UPDATED 12 JANUARY 2022.
Laws are changing rapidly in response to COVID-19. Please be sure to get the most current available information from a reliable source and seek legal advice if you are unsure of your rights.

Can your employer end work from home arrangements during the omicron surge?

Normally, an employer dictates where and when an employee works. This includes whether you can work from home. There are a couple of exceptions:

  • Your contract or collective agreement says otherwise
  • It’s not safe and your employer can’t make it safe or hasn’t made it safe
  • You require reasonable human rights-related accommodations, such as childcare or parental status accommodation or disability accommodation

Most employees hired before the pandemic don’t have a contractual or collective agreement right to work from home. It’s more common that pre-pandemic hires are work from home now because of occupational health and safety concerns or because of their childcare or disability-related needs. Or because of a blanket workplace policy issued in response to the high rate of health and safety or human rights-related needs in the workforce.

COVID-19 Occupational Health and Safety during omicron

If your employer is ordering to stop working from home, you have the right to know what occupational health and safety measures they will take to keep you safe. In Ontario, reviewing the following mandatory policies may help you assess how safe your workplace is:

  • Occupational Health and Safety Policy
  • Workplace Violence and Discrimination Policy
  • Accessibility Policy
  • COVID-19 Safety Plan (if your workplace is in an applicable geographic area or industry)
  • Workplace COVID-19 Screening (in most industries)
  • Vaccination Policy (for designated industries)

It is illegal to retaliate against you for asking about health and safety precautions in your workplace. In fact, you have a right to be trained on workplace hazards and on how to keep yourself safe and healthy on the job. This includes training on how to prevent exposure to COVID-19 and other infectious diseases. You also have the right to refuse unsafe work until it is made safe. For more information on how to properly refuse unsafe work, see this post.

Parental status accommodation during virtual learning, homeschooling

In addition, you have a right to be reasonably accommodated to the point of undue hardship if you have needs that are protected by the Ontario Human Rights Code. This includes parental status accommodation and disability accommodation. For some people, this may mean that their employer has to permit them to work from home (at least temporarily). For a primer on how workplace accommodation works, check out this post .

In addition to the examples provided below, you may be entitled to unpaid infectious disease emergency leave if:

  • Your child is sick because they contracted COVID-19 or had an adverse vaccine reaction
  • You need to take your child to get their COVID-19 vaccine
  • Your child’s school is closed because of COVID-19
  • You are afraid that sending your child to school will expose them to COVID-19
  • Your child is required to isolate, quarantine or test because of an exposure to COVID-19 or because they may have symptoms of COVID-19
  • Your child’s regular caregiver is sick, in quarantine or isolation because of COVID-19

Infectious Disease Emergency Leave if you can’t work from home

Unfortunately, work from home isn’t an option for every Ontario employee. Some jobs just don’t permit working from home. And, sometimes it’s impossible to balance childcare and working-from-home.

Ontario workers may be eligible for job-protected unpaid “Infectious Disease Emergency Leave” in the following circumstances

  • They cannot work because they require medical care related to having contracted COVID-19 or because of COVID-19 related mental health concerns
  • They are off getting a vaccination or because of a serious side effect of vaccination
  • They have been ordered to quarantine or self isolate or are otherwise required to quarantine or self-isolate
  • They are caring for a close family member (see the list and more detailed information about this leave here) either because they are sick with COVID-19, must quarantine or isolate
  • The employee cannot work because they cannot return to Ontario due to travel restrictions
  • The employee has been laid off on a “deemed” Infectious Disease Emergency Leave

Infectious disease emergency leave ends when your entitlement ends. For example, if you are ordered to isolate for 14 days, you are expected back at work on day 15.

Paid COVID-19 Leave for Ontario Employees

In addition, Ontario employees are entitled to up to 3 days of paid leave if they are eligible (i.e. if they are sick with COVID-19 or an adverse vaccine reaction, are isolating or in quarantine, or providing care to some one who is. You can find out more information about eligibility here ). Employers can apply to the WSIB to be compensated for providing these days. However, this leave is spread out across the entire pandemic and is capped at a maximum of $200.

If you already had paid sick days or other applicable paid time off under your contract, collective agreement or workplace policies, those would apply instead. Chances are, if you were in a workplace with some paid sick days already, these benefits are better than what Ford’s amendments offer!

Do federally regulated workers have the right to work from home during Omicron?

Most workers in Ontario are provincially regulated. Some, such as banking, inter-provincial trucking or telecommunications workers may be federally regulated. While the same general principles apply, the specific protections available to federally regulated workers are different. If you know or suspect that your work is federally regulated, please consider a legal consultation to explore your concerns about COVID-19 health and safety during omicron. In the meantime, you may wish to review this post from early 2020.

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