Williams HR Law LLP


June 10, 2020

On June 9, 2020, Premier Doug Ford announced that childcare centres across the province will be allowed to reopen beginning Friday, June 12, with health and safety restrictions in place.

The strict health and safety measures will include limiting the number of children and staff in a group to less than 10; requiring screening of all staff and children before entering the centre; frequently cleaning throughout the day; allowing only essential visitors; implementing physical distancing protocols for drop-off and pick up; and keeping daily attendance records to support contact tracing efforts. Childcare centres will also be required to have a response plan in place in case a child or staff member is exposed to COVID-19. Centres will face increased inspections and penalties for failing to comply with the new health and safety protocols.

Effective immediately, staff are allowed to re-enter childcare facilities and begin preparation for reopening. When these operators have met all the guidelines for reopening, they will be permitted to reopen.

As childcare centres will have limited capacity under the new restrictions, Minister of Education Stephen Lecce has indicated that frontline emergency workers and first responders will have priority in accessing childcare spaces. He also indicated that, since the province’s emergency orders are still in place, parents who choose not to send their children back to childcare centres at this time will not lose their spots.

The government has also indicated that summer day camps will be allowed to open, with certain restrictions in place, under Stage 2, the next phase of Ontario’s plan to reopen (For more details on Stage 2 of the province’s reopening, please see our recent article). More details will be announced on childcare and the reopening of schools in the coming weeks.

What Does this Mean for Employers Broadly?

The reopening of childcare centres is generally good news for employers with employees who have childcare obligations which may have impacted their ability to return to work up until this point, as many employees will be able to send their children back to daycare and recommence their regular work schedule. However, the limited capacity of childcare centres means that many employees may not have access to childcare spaces that were available prior to COVID-19. Additionally, many employees may still be reluctant to send their children back to childcare centres, even if it would allow them to return to work.

Employers will generally still have a duty to accommodate employees who have childcare obligations and do not have reasonable alternative childcare arrangements available to them. These employees will also generally continue to be eligible for the Infectious Disease Emergency Leave under the Employment Standards Act, 2000 if their ongoing childcare obligations prohibit them from returning to work. As childcare centres reopen, employers should be cautious not to penalize employees who may still have legitimate care obligations that cannot be met through childcare services available to them.

Employees who are able to return their children to daycare but choose not to due to concerns about their health will in many cases no longer be entitled to accommodation or statutory leaves as they were before. However, employers should not automatically assume they can return every employee in this circumstance to work, as there may be other protected circumstances giving rise to the employees’ concerns about returning their children to daycare, such as the employees’ own mental health.

What Does this Mean for Childcare Centres Specifically?

For childcare centres, this announcement should help guide their reopening process. In determining when they will reopen now that they will be permitted to do so, childcare centre employers should also ensure they are aware of whether they are required to reopen immediately under their agreements with parents or, for unionized centres, under their collective agreements or any letters of understanding they may have entered into with their unions.

Childcare centre employers should ensure that they carefully adhere to the provincial government’s new health and safety measures to ensure they are in compliance with all the new requirements, as failing to do so can lead to increased penalties. Employers are encouraged to review the provincial government’s sector-specific guidance for childcare centres.

In addition, childcare centre employers should remember that they have an obligation to take every reasonable precaution to provide a safe workplace for their employees and the children in their care, which will in many cases require going beyond the government’s guidance to implement even more strict workplace health and safety policies. Employers should, for example, conduct more specific risk assessments of their unique workplaces to meet their obligations and ensure worker safety.

Finally, centres will need to determine how to manage their workforces as they plan to reopen. Given the government’s restrictions on how many children can return to each centre and the likelihood that many parents will choose not to return their children right away, most centres will not have work for all of their staff. Centres should be careful in recalling employees to work, as they may face liability with respect to both the employees they recall and those they don’t. Some employees may continue to be entitled to statutory leaves or accommodation because of their own health or their family status, which in some cases will restrict employers from demanding that those employees return. Other employees who are not recalled immediately may question why they weren’t recalled, so employers need to ensure they do not create further liability for themselves in determining who will return. For example, employers must not recall only younger employees out of concern for their older employees’ health because doing so would violate the older employees’ human rights, despite that these decisions would be made for compassionate reasons. We will continue to monitor the government’s guidance with respect to the reopening of childcare centres and will post further updates on this Resource Centre as soon as they become available.

This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.