The Duty to Accommodate in the Time of COVID – 19

Introduction

The introduction of the Children’s Haggadah, (the telling of the Passover story), advises children that freedom means different things for different people. As children, they are told that “boys and girls who are free have the right to enjoy schools, libraries, playgrounds, movies, birthday parties, baseball and tennis games, and walks in the park”. This past weekend, the only freedom that remained intact was a visit from the Easter Bunny, who was deemed to provide an essential service. With schools and daycares and playgrounds closed, parents have been left to educate, care for and entertain their children at home.

QUFA Members are also experiencing a loss of freedom arising from the sudden an unexpected orders from the University to finish the Acadmic year to shift to a remote learning format, to deliver the remaining of the material from home, and to close or limit research laboratories.In the past weeks, I have received multiple emails from QUFA Members who are feeling more like circus jugglers than Academics. COVID-19 has introduced a new “normal” as the barrier between work and home has suddenly been stripped away.

The impact of an extension of remote learning into the fall will mean different things for different people. Some Members might question the right of the University to organize the workplace in a way that was never contemplated in the Collective Agreement. Others may question their ability to work from home, as their home is too small, the internet too unstable and their family responsibilities are overwhelming. Others may need to request extra time and/or support based on current accommodations in place due to recognized disabilities.

To address these concerns, I am providing a brief summary of the applicable legal framework that applies to the exercise of management rights, and what QUFA will be doing to assist you to protect your rights going forward.

The University’s Right to Manage

Article 8.1 of the Collective Agreement requires the University to manage “ except to the extent modified by the terms of this Agreement:, and to exercise their right “ in a fair and equitable manner consistent with the provisions of this Agreement”. Given the current state of emergency, an Arbitrator would apply a broad and generous interpretation to the definition of a “fair and equitable” exercise of Management Rights.

The Occupational Health and Safety Act

Article 8.1 must be also interpreted in view the statutory obligation under the Occupational Health and Safety Act to provide a safe and healthy workplace for the University community. The University must comply with the provincial directives issued to address the public health issues presented by COVID-19.

The Ontario Human Rights Code

The Ontario Human Rights Code continues to apply to the exercise of management rights during the COVID-19 pandemic. QUFA Members have the right to be accommodated based on disability and family status to the point of undue hardship. In the determination of undue hardship, the Code restricts the factors the University can consider to costs, health and safety, and sources of outside funding. The Supreme Court of Canada has further clarified that the right is to a reasonable accommodation, not a perfect or preferred arrangement. (Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43.

As health and safety are the driving factors behind the requirement to move to remote teaching, any request to accommodation by simply relieving that requirement would likely be dismissed as undue hardship. However, depending on the availability of classrooms with cameras and features that are specifically designed to allow Members to deliver lectures to a remote audience, there may be opportunities for some accommodation of members needing an alternative to a home office.

Depending on individual cirumstances, requests for special equipment, teaching assistants, IT support or the ability to move courses to a particular time slot would also have to be considered as reasonable requests, and undue hardship would be considered based on the costs and sources of outside funding available to provide such support..

Here is a link to some additional questions and answers produced by the Ontario Human Rights Commission

http://www.ohrc.on.ca/en/news_centre/covid-19-and-ontario%E2%80%99s-human-rights-code-%E2%80%93-questions-and-answers-0

Bill 186

In March of 202, the Ontario Government passed Bill 186, The Employment Standards Amendment Act Infectious Diseases. This Act extends job protection to all employees that have to take time off work because of COVID-19 related issues, including the need to care for children at home, the need to care for sick family members, or the need to take the required 14-day isolation time. All provisions of the Collective Agreement will have to be interpreted and applied in accordance with the spirit of Bill 186. For example, the Act states that you are not required to produce a medical note to support COVID related leaves. That right is reflected in the COVID-19 leave note produced in last month’s edition of VOICES, reproduced for your reference below. Bill 168 will also assist QUFA in enforcing job protection for our most vulnerable Adjunct members.

QUFA IS HERE FOR YOU

The Collective Agreement currently contains a number of job and wage protected leaves for qualified QUFA members. These include sick leave, compassionate leave, academic leave, reduced workload, personal leaves, and the right to request a deferral in the tenure clock. However, many of the systemic barriers to a full and successful remote delivery of courses are not captured by the applicable labour laws or the Collective Agreement This include issues such as the need for internet and devices, assistance in the development of new accessible on-line courses for students, and a way to ensure our members do not carry the full burden of administering student accommodations.

QUFA is working with Queen’s to create a Letter of Understanding about how things will work in a pandemic-altered university. It will be helpful for us to hear from you about the challenges you’re facing now or will face if remote teaching and research restrictions continue into the summer and fall. Please email me your concerns and questions to help us plan.

In Solidarity

Peggy Smith
QUFA Grievance Officer
smithpe@qufa.ca