Duty to accommodate child-care obligations

All requests for workplace accommodation should be taken seriously

Stuart Rudner

By Stuart Rudner 

About one year ago, headlines were made when the federal courts found in favour of Fiona Johnstone, a border services employee that alleged that she had been discriminated against on the basis of family status.

Specifically, she sought to have her schedule changed in order to accommodate daycare availability in the area. At the time, many speculated this would "open the floodgates" to employees with children being able to dictate their work schedules. I discuss this the ramifications of the case in a previous blog post and offered my opinion that it would not be relevant to most employees. It would only be where there is a very significant need that the employee could establish, that the employer might be required to accommodate.

The decision was recently addressed by the Federal Court of Appeal, which confirmed the lower court's ruling but also established a four step test that any individual must meet before discrimination on the basis of family status will be found. The first step is for the employee to demonstrate she made reasonable efforts to secure child care. In other words, an employee cannot simply say her daycare of choice is only open during certain hours. She would have to lead very specific evidence showing she they had no reasonable option available to her unless accommodation was provided by the employer.

As discussed in my previous blog post, employers should not dismiss requests for accommodation, whether they be for disability or child care, out of hand. That was a mistake that the Canadian Border Services Agency (CBSA) made in the Johnstone case. All requests should be taken seriously. Once a legitimate need has been established, the employer will have an obligation to consider accommodation options. However, the employee is not entitled to her preferred form of accommodation; the employer is entitled to ascertain what options are available, and choose one, so long as it is reasonable.

The Federal Court of Appeal decision confirms that child-care obligations are a part of family status, and will be protected. However, the court also confirmed that they will only find that there was discrimination, or that there was a need for accommodation, where a legitimate need can be proven by the individual.

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