Your Legal Rights Under the COVID-19 Letter of Understanding

This is not your typical summer. Instead of preparing for summer camps, trips to the beach and maybe a sabbatical in a different part of the world, QUFA Members are busy revising their courses to a remote teaching format, learning to effectively use new technology, working from home while balancing childcare obligations, and spending hours attending zoom and team meetings on line.
The COVID 19 Letter of Understanding addresses how your Collective Agreement rights will be administered over the 2020 -2021 Academic Year. In this busy and stressful time, it is important to understand your legal rights and access the benefits that you can rely upon to address and minimize the impact of the move to remote teaching on your professional and personal life. This column will highlight three important topics that might be of interest to you: (a) family status accommodation, (b) dealing with the added expenses incurred in the move to remote teaching, and (c) Maternity Leave Benefits.

(A) New Process for Requesting Family Status Accommodation
In recognition of the need for a timely and equitable response to requests for accommodation based on family status, the COVID LOU provides an expedited process that will review and respond to all requests within a 15 day window. In order to take advantage of this opportunity, please review the following information carefully.

The Law
The Ontario Human Rights Tribunal has interpreted family status as including a legal or actual responsibility to care for children or other family members under your care. If the requirement to deliver course material in a remote teaching format interferes with those responsibilities, the University may be required to accommodate you to the point of undue hardship. The duty to accommodate does not extend to personal preferences and must be a reasonable accommodation.

Your Responsibilities
Your role in the accommodation process is to gather information that supports the following facts:
• you have a child or parent under your care;
• you have a legal or actual obligation to care for the individual;
• any information about the child, the parent or your family situation that needs to be considered. This can include disclosure of personal background information such as marital status, special health or care needs, a custody order, the size of your home, the quality of your internet, the number of people in your home working or learning, or the number of devices available for use;
• the impact of the requirement to work from home on your obligations to care for your children or your family member;
• the extent to which you can readily self-accommodate and what steps you have taken to do so;
• any additional facts that support a reasonable accommodation you want to propose that would alleviate the adverse impact on your obligation to care for your children or family members, taking into account costs, health and safety and sources of outside funding.

My Role
As the QUFA Grievance Officer, I can help you to understand the law, and to identify solutions that may involve modifying provisions of the Collective Agreement to address your needs. I can also help to ensure that all requests for family status accommodation are considered on an equitable basis.

The University’s Responsibilities
The University must make good faith efforts to provide reasonable accommodation to the point of undue hardship. In the assessment of what is reasonable, they must consider the impact of the requirement to work remotely on your individual family circumstances, any efforts you have made to self-accommodate or minimize the impact, and costs, health and safety and sources of outside funding.

Some Possible Accommodations
We can work together to formulate a reasonable proposal, but we cannot demand a specific change. The employer has the ultimate authority to determine the nature of the accommodation and will be deemed to have met the duty to accommodate if the proposed solution is reasonable. The standard is not perfection.
Here are some possible accommodations we can explore.
1. Schedule your teaching assignments in the winter and spring terms, to allow time to address childcare arrangements in the fall term.
2. Ensure safe access to an equipped office or lecture hall on campus from which you can deliver your courses if needed.
3. In situations where two Faculty Members share the responsibilities, coordinate your schedules in a way that enables you to share the co-parenting and family care responsibilities.
4. Permit you to sign out any necessary items from your campus office needed to fulfill your academic responsibilities from home.
5. Request an Adjustment of Duties for a term that allows you to meet your family responsibilities.

Case Law
For those of you who would like some extra reading, here are a few recent cases that illustrate the approach to assessing and addressing family status claims.
Misetich v. Value Village Stores Inc., [2016] O.H.R.T.D. No. 1253,
Simpson v. Pranajen Group Ltd. o/a Nimigon Retirement Home, 2019 HRTO 10 (CanLII)

(B) DEALING WITH THE COSTS OF WORKING FROM HOME

Article 36 of the Collective Agreement sets out the Employer’s obligations to provide Faculty with the tools needed to fulfill their academic responsibilities. This includes a furnished office, free internet connection and a telephone. Some Members can easily duplicate these conditions at home. Other Members may incur additional costs to acquire the necessary furnishings or upgrades to their internet and phone services.

Request Items if Needed Due to Accommodation Needs
If you have needs that arise out of a disability, illness or family status reasons, these can be requested as part of an accommodation under the OHRC and the employer will be required to purchase the items unless it can establish undue hardship ( would be property of Queen’s and therefore no tax consequences). In the alternative, If your home situation does not support or allow you to perform the essential duties of your job, you may request the right to work from a campus location. The employer would be obligated to ensure access that complies with social distancing and other public health requirements.

Rights Under COVID LOU

Schedule C, paragraph 23 of The COVID LOU gives you two options on how to deal with your expenses: (1) have them preapproved by your Unit Head, in which case Queen’s will compensate you for those costs on production of appropriate receipts and documentation to the Head, or (2) request a T2200 to support a claim for home office tax relief.

What you Need to Know About the T2200

The University must issue a T2200 to support your claim for home office tax relief, but that does not guarantee that Revenue Canada (RCA) will agree to your claim. The assessment and decision will be made by Revenue Canada.

There are strict rules for compliance; you must be able to meet one of the wo threshold tests set out below:
(1), the workspace is where you principally perform the duties of your office or employment for more than 50% of the time, or;
(2) the workspace is used exclusively for the purpose of earning employment income and it is used on a regular and continuous basis to meet with customers or clients in the course of performing employment duties.

Under the current RCA rules, it may be difficult to meet either test. With respect to the first test, 50% time is usually calculated by the RCA over the full period of employment during the course of the calendar year, not just the part of the year you are required to work at home. With respect to (2), Revenue Canada has not yet recognized attendance at zoom or other virtual meeting as a “meeting”. However, it is possible that both tests will be reconsidered and interpreted in a favourable way in the context of the current public health pandemic.

Finally, you should be aware that if you own your home, and declare the home office credit, there may be tax consequences when you sell your home.

In all cases, QUFA recommends that you seek the advice of your accountant or tax professional.

(3) MATERNITY LEAVE

Finally, for those Members who are expecting a baby in the pending months, please contact me at the QUFA Office for clarification on the Maternity and Parental Leave provisions in the Collective Agreement. We have identified a potential breach of the Ontario Human Rights Code and would like to bring it to your attention.

In Solidarity

Peggy Smith
QUFA Grievance Officer
smithpe@queensu.ca