By Jeffrey R. Smith
It’s the time of year where in most parts of Canada, vacations are over, kids are going back to school and parents have to juggle the schedules of their kids’ schools and extracurricular activities with their work schedules. So it’s probably a good time for employers to review family status as an emerging ground for accommodation.
As family status has risen in awareness for accommodation, there’s been some debate over what it really means and to what extent employers have a duty to accommodate. It’s become clear that parental obligations can be a ground for accommodation — but it’s not been as clear what obligations that includes. Some legal decisions have been released recently that have helped to clarify that.
The Johnstone ruling
Earlier this year, the Federal Court of Appeal upheld a well-known Canadian Human Rights Tribunal decision that determined family status included parental obligations such as child care. The case, Johnstone v. Canada (Border Services Agency), involved a border officer who asked for modified work hours to accommodate her childcare needs.
Both the employee and her husband worked rotating shifts for the Canada Border Services Agency (CBSA). After CBSA refused, the employee filed a human rights complaint. The tribunal found individuals shouldn’t experience any discrimination due to such family status obligations. In addition, CBSA didn’t provide any reason why it couldn’t meet the request for accommodation.
The Federal Court of Appeal indicated that there didn’t have to be a serious interference with childcare obligations for there to be discrimination, just that:
• The employee was a parent or primary caregiver
• The childcare obligation involves the employee’s individual’s legal responsibility for a child, rather than a personal choice
• The employee must make reasonable efforts to balance work and childcare and an employer must investigate accommodation options only if no alternative solution is reasonably accessible
• The employer’s policy substantially with the employee’s childcare obligation.
The Seeley ruling
Another decision that was released last year, Seeley v. Canadian National Railway, 2014 CarswellNat 1421, in which a CN employee living in Alberta refused an assignment in Vancouver because there were no childcare options at her residence and she couldn’t bring her children with her.
After the employee was terminated, her human rights complaint made it to the Federal Court of Appeal, which agreed with the Canadian Human Rights Tribunal that the employer’s demands significantly interfered with the employee’s childcare obligations, there were no alternative childcare arrangements and CN hadn’t proven it could not accommodate the employee without undue hardship.
With the school year starting again, families are on different schedules than they have been for the last few months. Employers shouldn’t be expected to accommodate relatively minor requests, such as time off to attend children’s sports events or extracurricular activities — the type of thing everyone must balance on through their own resources. But if employees make requests that are associated with important and significant childcare obligations — such as day care or necessities for special needs children — it’s a good idea to investigate options and legal obligations before simply saying no.