Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice, and provides Kelowna Capital News with weekly stories from the world of local, national and international law. (Contributed)

Kootnekoff: Are we really “all in this together?”

Susan Kootnekoff is the founder of Inspire Law, her diverse legal career spans over 20 years

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.

In case you missed it?

Maple Leaf Foods owed no duty of care to Mr. Sub Franchisees

About Susan Kootnekoff:

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

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.

To report a typo, email:
newstips@kelownacapnews.com
.


@KelownaCapNews
newstips@kelownacapnews.com

Like us on Facebook and follow us on Twitter.

ColumnistCoronavirus

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Salmon Arm Mayor Alan Harrison is comfortable waiting his turn to be vaccinated for COVID-19, as per the B.C. government’s updated vaccination timeline released on Friday, Jan. 22, 2021. (File photo)
Province’s vaccine timeline a shot of hope for Salmon Arm mayor

Mayor Alan Harrison sees majority of residents taking precautions against COVID-19

Interior Health reported 79 new cases of COVID-19 and two new death in the region Friday, Jan. 22, 2021. (Ben Hohenstatt/Juneau Empire)
79 new COVID-19 cases, two deaths reported in Interior Health

Both of Friday’s deaths were both recorded at long-term care homes

Adams Lake Kukpi7 (Chief) Cliff Arnouse (pictured), Neskonlith Kukpi7 Judy Wilson and Little Shuswap Lake Kukpi7 Oliver Arnouse released a joint notice regarding confirmed cases of COVID-19 in their respective communities. (File photo)
Secwepemc First Nation bands responding to COVID-19 cases in their communities

Adams Lake, Neskonlith and Little Shuswap Lake band chiefs release joint notice

The CSRD will be hosting online budget consultations and their board meetings will also be streamed online for the foreseeable future. (CSRD Image)
Columbia Shuswap Regional District budget and board meetings will be held online

A first draft of the budget is available on the regional district’s website

(Pixabay photo)
Black Press Weekly Roundup: Top headlines of the week

In case you missed it, here’s what made waves throughout the week

Sunnybank in Oliver. (Google Maps)
Sunnybank long-term care in Oliver reports third COVID-19 death

The facility currently has an outbreak with 35 cases attached to it

Chief Public Health Officer Theresa Tam speaks during a daily briefing in Ottawa. (THE CANADIAN PRESS/Adrian Wyld)
31 cases of COVID-19 variants detected in Canada: Health officials

Dr. Theresa Tam made announces 13 more variant COVID-19 cases in Canada

Administrative headquarters for the Regional District of Central Okanagan in Kelowna. (File photo)
Tempers fly over a pricey picnic shelter in the North Westside

Lack of detail on $121,000 shelter expenditure further incites self-govenance wishes

Big White Village on Dec. 16. (Big White photo)
11 more COVID-19 cases linked to Big White cluster

Interior Health provided an update on the cluster on Friday

Royal Inland Hospital in Kamloops. (Dave Eagles/Kamloops This Week file photo)
COVID-19 outbreak declared at Kamloops’ Royal Inland Hospital surgical unit

Despite 6 South being a surgical unit, RIH said surgeries are continuing at the hospital

Daily COVID-19 cases reported to each B.C. health region, to Jan. 20, 2021. Island Health in blue, Northern Health green, Interior Health orange, Vancouver Coastal in red and Fraser Health in purple. (B.C. Centre for Disease Control)
B.C.’s COVID-19 infection rate stays stable with 508 cases Friday

Vaccine delivered to more than 110,000 high-risk people

(Phil McLachlan - Capital News)
‘It’s incredibly upsetting’: Kelowna health care worker demands WestJet ticket refund

Kelowna woman has been waiting almost a year for a refund on her Kelowna to Edmonton flight

After a Vernon resident tried to domesticate a pair of gopher snakes, BC Conservation Service reminded that it is against the law to keep wild animals in one’s possession. (Yuval Levy/Unsplash)
Wild gopher snakes aren’t pets: Vernon conservation officer

After resident kept two gopher snakes in home, conservation reminds it’s illegal to domesticate wildlife

Most Read