Even during a public health emergency, employees who can continue to perform work are still expected to meet expectations, goals and standards despite work and family life changes due to the public health emergency. In this case, during the COVID-19 health crisis, many employees workplaces have been transferred to their home, and some, have always had this arrangement or flexibility.
Communication between the employer and co-workers and performance management continues for employees who work at home during the COVID-19 crisis.
The caveat is that children may be present during work hours because of school and daycare closure.
According to Daniel Dylan in the Lawyer’s Daily “Of course, a common workplace accommodation provided by various employers to various employees is, itself, the opportunity to work from home. In such cases, generally speaking, the duty to accommodate reaches not only the home itself, but also generally reaches into the home, at least for essential job duties. Stated differently, under varying circumstances, an employer’s duty to accommodate essential job duties exists in the employee’s home workplace as much as it does in the employer’s workplace.
Nevertheless, given that many employees are currently working from home, and have essentially turned a portion of their homes — if not their entire home — into workplaces, the interesting question arises of how far the jurisprudence governing undue hardship may be flexed in order to meet the duty to accommodate in our current and new COVID-19 reality of “working from home.”
That said, the employee must still arrange care for his or her children during work hours to ensure he or she can continue to perform the job to the expected standard, including productivity expectations. The employee must still have a defined workspace that allows him or her to do that away from his or her children.
It is the responsibility of the employee to require his or her family members not interrupt him or her during his or her work hours.
That being said, an employer might be required to accommodate an employee’s childcare obligations while working from home during the COVID-19 pandemic, depending on the circumstances, and always only to the point of undue hardship.
There are options employers can explore with employees to help with an employee’s childcare obligations in these circumstances. These types of accommodation must allow the employee to be able to perform his or her duties. However, reasonable accommodation should help employees meet existing performance requirements, not excuse them from accountability, and these include:
- offering the option to reduce daily (i.e., 3 hours per day) or weekly hours (i.e., 3 days per weeks).
- Changing an employee’s existing schedule, if feasible, for example, allowing the employee to work the same number of hours but in two or three blocks or whenever they can and to track their hours of work.
- granting the employee an unpaid leave under employment standards or other laws or workplace policy, with job protection.
