Are The Teachers’ Unions Right? Does Ontario’s Back-To-School Plan Violate Its Own Workplace Safety Laws?

With Ontario’s back-to-school plan only days away from deployment, there’s just as much as uncertainty as ever. This week, we learned that four major teachers’ unions are filing a complaint to Ontario’s labour board. The argument? They claim Premier Doug Ford’s school reopening plan violates the province’s own workplace safety laws.

On August 31, the unions – which represent 190,000 educators – said they all plan to file complaints after Ontario government meetings failed to instil confidence 1 . But should the teachers’ unions get their way, what impact will their changes have on Ontario’s back-to-school plan? And what rights do teachers and parents currently have if the unions fail in their attempt to force change? This blog will attempt to answer some of the province’s most frequently asked questions at this time.

What changes are the four teachers’ unions looking to impose?

Currently, the individual teachers’ unions filing complaints about Doug Ford’s back-to-school plan are:

  • The Association des enseignantes et des enseignants franco-ontariens
  • The Elementary Teachers’ Federation of Ontario
  • The Ontario English Catholic Teachers’ Association
  • The Ontario Secondary School Teachers’ Federation

The teachers’ unions’ grievances are the ones echoed by many school boards, parents and guardians at this time. Essentially, they want the province to lower elementary class sizes and fund the reduction. Right now, it’s the boards’ duty to fund the provision of extra class space or the hiring of additional staff to promote physical distancing.

Additionally, the unions recently requested that the Ministry of Labour set a series of workplace orders to ensure solid safety standards in Ontario schools. Ultimately, the unions want 15 to 20 students per class with a two-metre distance enforced between each pupil. Moreover, they want to cap cohort sizes at 50.

Over recent weeks, the nine school boards making up the GTA released their own information pertaining to their individual back-to-school reopening plans. At this time, the overarching theme is that kindergarten to Grade 8 students will return with no reduction in class sizes. Nevertheless, in many cases, students will spend half the school day in single cohorts with distance learning making up the other half.

What rights do teachers have if the unions fail to force change?

Can teachers refuse to return to work since they cannot sue in court?

Ultimately, teachers cannot sue in court but they can file a grievance and seek arbitration. From here, an arbitrator can decide whether a teacher’s return to work plan is appropriate or not. However, the process of arbitration takes time so an interim measure is for teachers to obtain an injunction to stop a particular school from reopening.

Can teachers go on strike out of COVID-19 health and safety fears?

Not only is it highly controversial for teachers’ unions to strike, since they prevent future generations from learning, strikes are illegal and result in discipline too. With schools safeguarded from strikes under a collective agreement, there are terms related to safety however. This is where teachers are empowered to file a grievance as stated above.

Elsewhere, teachers aren’t currently exempt from the right to a workplace refusal. That means they can refuse to return to a school, but only when a safe environment cannot be maintained. As part of this, a provincial inspector will have to audit the premises of a particular school before a workplace refusal is deemed reasonable. This, however, is a risky and highly controversial move as it directly impacts students’ ability to learn and potentially breaches supervision-based responsibilities.

What are teachers’ options if they test positive for COVID-19?

Like any profession, if there is a medical condition that affects an individual’s ability to work, teachers can find workarounds. Whether it’s a simple cold or whether a teacher has tested positive for COVID-19, teachers can obtain a doctors’ note stating that they cannot currently work in the school environment. After that, school boards would have to allow that teacher to teach in an alternative setting, for instance via a second screen. Currently, many teachers are assessing their own risk and taking responsible steps just like these.

What about parents? What rights do they have at this time?

Can parents choose not to send children back to school due to COVID-19?

The short answer is yes. In August, Premier Doug Ford said parents “don’t have to put their kids back in school”. Ultimately, parents have the choice whether to continue home schooling their children amid COVID-19 health and safety fears. Nevertheless, this simply isn’t practical for many Ontario families. With parents needing to earn a living by returning to their place of employment, this is the major dilemma facing thousands of Ontarians right now.

If parents continue home schooling their children, will employers punish them for not returning to work?

While Ontarian parents have the choice to either send their children back to school or continue home schooling, employers don’t have to accommodate choices. Ultimately, working parents who choose not to send their children back to school may be considered by their employer to have resigned if they do not come into work.

In short, employers must only accommodate requirements, not choices. In other words, parents wishing to keep their children home while keeping their job may have to find alternate childcare of babysitting arrangements.

Currently, employees can flat out to refuse to work but only if a workplace poses a clear and obvious danger to the health and safety of its staff. All around Ontario, businesses have been preparing for Stage 3 of the province’s reopening plan by installing things like protective screens and hand sanitizer stations to make their workplace COVID-19 safe.

As previously discussed for teachers, where workplaces cannot maintain a safe environment for your employment, refusals may be deemed reasonable but this will depend on the intricacies of each case. Right now, professions exempt from the right of refusal include police officers, firefighters, correctional officers and hospital workers.

What risk factors should parents consider before home schooling or sending their kids back to school?

Now Ontario’s back-to-school reopening is almost here, it’s important to assess all risk factors before making final decisions over home schooling versus returning to school. In some cases, parents won’t be able to risk losing their employment over the decision. For others, they may be afforded some much-needed flexibility in uncertain times. Whatever the circumstances, parents should ask themselves:

  • Does my child have any health conditions?
  • Does my child’s close contacts have health conditions?
  • Do I have the ability to find childcare?
  • Do I have the ability to home school?
  • Does my child have development needs that require in-class learning with professionals?