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All in the Family (Status)

10/03/2016 by Lorenzo Lisi

How far do employers have to go to accommodate family status?

Over the past few years, there has been a lot of time and ink devoted to understanding the scope of “family status” protection under federal and provincial human rights legislation. As a result, Canadian employers are often left scratching their heads when faced with a “family/childcare” accommodation request in the workplace.

The state of the law

You may recall that there had been (and still is) an attempt to clarify what would constitute discrimination on the basis of family status when it came to childcare obligations. One approach, set out by the British Columbia Court of Appeal, determined that in order to trigger the obligation of an employer to accommodate, an employee had to demonstrate a “serious interference with a substantial parental or other family duty.”

The 2015 Federal Court of Appeal decisions in Canada (Attorney General) v. Johnstone and Canadian National Railway v. Seeley held that a “serious interference” standard was too high a threshold and would undermine the protection against discrimination provided by legislation as it related to family status issues. Instead, the Federal Court of Appeal reframed the debate and asked whether or not the employment rule interfered with an employee’s ability to fulfill their substantial parental obligations in any way.

The take-away for employers from the debate is twofold: first, it confirms that at law, “family status” includes not only the status of being a parent, but also the parental obligations that flow from that status; and second, that the review of whether or not the obligation to accommodate is triggered, may include an assessment of the following factors:

Parental obligation: The employee must be the parent or responsible for the child’s care

Legal obligation: The employee’s childcare obligation must engage his/her legal responsibilities to the child, rather than being merely a personal family choice

Reasonable efforts: The employee must show that he/she has made reasonable efforts to meet the childcare obligations through alternative solutions, and that no such alternative solution is reasonably accessible

Real interference: The “offending” workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation

The test has not been considered by the Supreme Court of Canada, but it clearly signals a much more purposive approach to “family status,” one which provides a greater level of protection for employees with childcare obligations and further, which can be extended to include “elder care” responsibilities.

Given that the obligation to accommodate, or at least inquire into possible accommodation, may exist even where the child or eldercare arrangements are only “difficult” or “impractical,” how can employers know how far they have to go in accommodating what were formerly family “lifestyle choices”?

In SMS Equipment v. CEP, Local 707, the Alberta Court of Queen’s Bench upheld an arbitrator’s decision that SMS discriminated against an employee on the basis of family status by refusing to accommodate the employee’s childcare responsibilities.

The employee was a single mother of two children and worked night and day shifts as a welder for SMS. She requested daytime shifts because she had no extended family to assist her with childcare. The requirement of working night shifts meant she not only had to pay for a third party caregiver to look after her children during the night, but she then had to either pay a caregiver to watch them during the day (so she could sleep), or had to watch them herself, which gave her very little time for sleep.

SMS could not prove that the accommodation (steady days) would cause undue hardship, particularly given that another employee was willing to trade off and work straight nights. The Alberta Human Rights Tribunal held that SMS failed to accommodate the employee and set out the following test in establishing discrimination based on family status under the Alberta Human Rights Act: (i) the employee has a characteristic that is protected from discrimination (in this case, family status); (ii) the employee experienced an adverse impact; and (iii) the employee demonstrated that the protected characteristic was a factor in the adverse impact.

In Miraka v. ACD Wholesale Meats Ltd., the Ontario Human Rights Tribunal held that the decision to terminate an employee for “unreliability” (after missing three consecutive days of work) was related to the employee’s obligation to his childcare and therefore contrary to the Ontario Human Rights Code.

The employee was a driver for a wholesale meat distributor. His job required him to come to work early in the morning to prepare the deliveries for the day, except for Mondays when he didn’t have to report in until later in the morning. On Monday, June 11, 2012, he told the office manager that he would have to stay at home the next day (June 12) and take care of his children (one and four years of age) due to the illness of his wife, who normally cared for them. Specifically, he said that due to his wife’s anxiety, he was afraid to leave the children alone with her because they would be essentially “unattended” and, further, that they lived on the seventh floor of an apartment with a balcony.

On June 13, 2012, he was scheduled to start work around 5:00 a.m., yet didn’t call in until around 11:00 a.m. At that point, he told the employer that he could not attend work for the same reason; that is, his wife was still ill and he had to stay home again to take care of his children.

On June 14, 2012, he returned to work but injured himself and had to leave. The employer testified that the decision to terminate was due to unreliability, although there was an issue of alleged discrimination on the basis of disability given his injury on the 14th.

The Tribunal found that the termination was discriminatory, that the employee’s absences on all three dates were at least a significant part of the reason the decision to terminate and that it would be unreasonable to leave the children alone with their mother (i.e., the children would have been placed at risk) which would engage his legal responsibility under the Johnstone test.

Perhaps more troubling for employers is that the Tribunal stated that it was “not convinced that the requirement to demonstrate reasonable efforts to make alternative childcare arrangements applies in cases like this, where there is only an infrequent, sporadic or unexpected need to miss work to take care of one’s children.”

The employer’s argument that the employee was obliged to find alternate childcare on short notice was rejected and found to be inconsistent with the legal obligation to care for his children.

As to the issue of why the employee couldn’t give proper notice of his inability to attend work prior to his shift on the 13th, the Tribunal appears to have accepted the evidence that he was so tired from the night before that he was not “thinking clearly.”

There is likely some sympathy for the frustration of an employer where an absence cannot be filled because of late notice. There is also the added concern that even temporary accommodation requests can trigger the obligation to accommodate, despite having a clear adverse effect on the employer’s business. The decisions did make one thing clear: there does not have to be a “serious interference with a substantial parental or other family duty.” If the employee’s request for accommodation triggers the legal obligation to care for a child or elder, then a failure to accommodate (subject to proving undue hardship) will lead to a finding of discrimination.

Practically speaking

Given the law, employers should expect a lot more requests for accommodation due to family obligations. So what is an employer to do?

The first step for employers should be to review and, if necessary, update their policies and procedures concerning accommodation in order to treat each request fairly and independently. Each accommodation request comes with its own set of facts and history and while employers may sometimes be hard-wired to reject requests that seem trivial, being both compassionate and creative and avoiding a “one size fits all” approach to accommodation may be far more effective.

Remember that employers are entitled to ask for information concerning a specific accommodation request in order to make an informed decision. For example, what are the specific needs of the child or elder care, and has the employee sought out alternatives to deal with them? And what is the duration of the requested accommodation?

In addition, employees are not entitled to “perfect” accommodation, but one that (based on the information) is reasonable in the circumstances. Open-ended requests without the support by appropriate and necessary information need not necessarily be accommodated and employees cannot “cherry pick” the job/shift or accommodation they prefer.

Further, the duty to accommodate is a multi-party inquiry that involves not only the company, but the employee as well (and if unionized, the union). A failure to participate in their accommodation may impact the employee’s right to that accommodation.

And finally, the need to document and follow up on the accommodation once implemented is critical. Often times, employees are left in accommodated roles as a result of neglect or because they are “out of sight, out of mind.” Employers must be vigilant in following up and reviewing the accommodation and, if necessary, modifying or even eliminating the need for the accommodation if the circumstances have fundamentally changed.

Life is becoming more complicated for employers and employees alike. The hope is that in the long run, with practice, patience and creativity, both sides will be successful in integrating the need for family status accommodation in a manner which addresses the employee’s concerns as well as the employer’s operational needs.

Lorenzo Lisi is the practice group leader of Aird & Berlis LLP’s labour and employment group.