Clearly, some members of society being left behind.
Women and the disabled are particularly affected by the response to fears over COVID-19.
Between March and June, schools in B.C. and Alberta abruptly closed.
Alberta’s government is closing schools again for all students and all families, regardless of personal circumstances.
It is widely agreed that COVID-19 is a “disability” for the purposes of Canadian human rights legislation.
Human rights legislation generally prohibits discrimination on the basis of certain grounds. Examples include race, religion and gender.
Employers, landlords and service providers must offer reasonable accommodation to the person affected.
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) issued guidance respecting COVID-19 in March 2020.
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 a school to the children of all parents discriminatory to some?
Are governments a provider of services (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.
Physical schools close.
Her three children are now at home, full time. They require her almost constant attention and supervision.
The schools state that they are ‘learning remotely.’ This means 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.
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 be in school, while also failing to increase childcare spots available to her?
Other parents opt to continue working, which necessarily means they are unable to assist with their children’s education.
And, not all children have access to online or other resources. What will happen to those without access to technology, or without a reliable internet connection? Are they simply abandoned?
By closing schools, the government is failing children and parents.
The future is likely to reveal some interesting human rights tribunal, and court, decisions.
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About Susan Kootnekoff:
Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.
Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law.
She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.
Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013,
Susan moved to the Okanagan with her family, where she currently resides.
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