Clearly, some members of society are being left behind amid responses to corona virus.
Women, the disabled and the impoverished are particularly affected.
Between March and June, schools in B.C. and Alberta abruptly closed.
Alberta’s government is closing middle and high schools again for all students and all families, regardless of personal circumstances.
Human rights legislation generally prohibits discrimination on the basis of certain grounds. Examples include race, religion, gender, family status and physical and mental disabilities.
It is widely agreed that COVID-19 is a “disability” for the purposes of Canadian human rights legislation.
Employers, landlords and service providers must offer reasonable accommodation to those affected.
Recently in Fraser v. Canada (Attorney General), the Supreme Court of Canada affirmed that discrimination may arise as a result of women bearing the majority of childcare responsibilities.
Employers have a duty to accommodate employees with mental disabilities, whether a pre‐existing condition or one resulting from the pandemic.
The BC Office of the Human Rights Commissioner (BCHRC) has provided guidance respecting COVID-19.
It discusses discrimination on the basis of family status, particularly in relation to closure of schools and child‐care. It notes that accommodations will be required so parents can care for their children.
The BCHRC states that the gendered effect of school closures and child‐care facilities on women, particularly single mothers, must be recognized. Similar considerations apply to those caring for sick family members.
The Alberta Human Rights Commission (AHRC)’s statement respecting corona virus states that employers, housing and service providers should ensure that their actions are “consistent with the most recent advice from medical and public health officials, and are justified for health and safety reasons”.
The AHRC states that employers have a duty to accommodate employees “in relation to COVID‐19, unless it would amount to undue hardship”.
This is not restricted to employees who are symptomatic or test positive for COVID‐19.
It also applies to employees who are vulnerable to serious illness if they contract COVID‐19, who have mental disabilities resulting from the pandemic, and who have new or different childcare obligations.
Even if the person adversely affected does not actually have COVID-19, discrimination may still arise from the larger context.
Many employers are aware of their obligation to accommodate employees whose children’s schools or daycares are closed, and who have no other childcare options. Examples of accommodation measures may include allowing the employee to work from home and assuring that deadlines are reasonable.
Does the obligation to accommodate an employee’s gender-based childcare needs lie only on employers?
Is closing schools to the children of all parents discriminatory to some?
Are governments providing a service (educating children of parents) customarily available to the public (through schools)?
If so, are they fulfilling their duty to accommodate when an across-the-board school closure is ordered on the basis of COVID-19?
Is failing to distinguish between those who are unable to both care for their children and also maintain their work responsibilities a failure to accommodate?
Imagine a woman who works full time. She has three children. One is high needs.
She is either a single mother, or her husband works in another community. She has no family nearby.
A few childcare facilities remain open but are full.
Physical schools close.
Her three children are now at home, full time. They require her almost constant attention and supervision.
The schools state that learning will occur remotely. This may mean a teacher has a brief “virtual” meeting twice per week, and sends much homework to be completed at home.
She must sit with her children as they do their homework, explain things that could not be adequately explained briefly through a screen, ensure they each understand and complete the tasks at hand, and manage the various online meetings.
Now, she spends 10 hours per day attending to her children’s educational needs alone. This is in addition to basic parenting duties.
She is not being paid to do the work that the teachers would otherwise be doing had schools remained open.
She works for a local small business. Her employer attempts to extend minor accommodations to her, including working from home. It cannot reduce her hours or do more, or it will go out of business.
She is diligent, but is able to complete less than half of the work required of her each day.
She cannot meet both her employment demands and her childcare demands.
She is fired.
Shortly thereafter, the employer goes out of business.
Having put his life savings into the business, the owner of the business is also broke.
Is she out of luck?
Or, will she be able to obtain a remedy against the government for failing to offer accommodation of her gender-based need for her children to attend school?
Some parents may opt to continue working, which necessarily means they are unable to assist with their children’s education.
What about families without access to technology, or a reliable internet connection? Are they to simply abandon their education?
What are the long -term implications of this on those children?
By closing schools, the government is failing children, particularly those who are impoverished, and parents, particularly working women.
The future is likely to reveal some interesting human rights tribunal, and court, decisions.
This is a modified version of a November 29, 2020 article appearing in online publications including the Kelowna Capital News. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. We may be reached through our website at inspirelaw.ca.
