A recent ruling from the Ontario Human Rights Tribunal (OHRT) has put elder care in the spotlight and should have employers taking notice, according to legal experts.
Lyndon Devaney began working as an architect at ZRV Holdings, a holding company for Zeidler Partnership Architects, in 1982. In the 1990s, his mother’s health became an issue as she had osteoarthritis and osteoporosis. As her primary caregiver, Devaney was often out of the office but said he could be reached 24-7 by phone, email or in-person.
Working on a major project in 2007 and 2008, Devaney put in about 1,500 hours of overtime, he said, though he did not receive compensation for it. However, senior partner Alan Munn felt the overtime claims were overstated and was unhappy with Devaney’s frequent absences.
“We have tolerated your absences for a long time in recognition of your personal and family problems. We are not prepared to tolerate this further. We expect immediate and permanent correction,” said Munn in a July 2007 email. “As far as I am concerned, the only time that counts is the time you spend in the office working with your team.”
Munn said the absences were demoralizing to the office as a whole, but Devaney successfully did his work and said it was ridiculous to be in charge of a $350-million project and have to get partner approval to go outside for a client meeting.
However, in January 2009, after several warnings, Devaney was terminated and provided 34 weeks’ salary and benefits for eight weeks.
Devaney alleged discrimination on the basis of family status, saying he lost his job because the firm unilaterally changed the terms of his contract and didn’t allow him to maintain a flexible work schedule to care for his ailing mother. The firm, on the other hand, said his employment was terminated for just cause because of his persistent failure to regularly attend the office in the face of many warnings. It also said Devaney never sought formal accommodation of his workday or adjustments of the requirements to accurately account for his attendance or any absences.
The OHRT disagreed.
“The applicant’s family care requirements were a significant factor in the respondents ultimately terminating his employment,” said adjudicator Brian Eyolfson.
“Given the applicant’s care responsibilities to his mother, the respondents’ requirement that the applicant be in strict attendance at the office each day had an adverse impact on the applicant… I find, therefore, that the applicant has established a prima facie case of discrimination on the basis of family status.”
Devaney soon found work elsewhere but the firm was ordered to pay him $25,000 for “loss of self-respect, dignity and confidence.”
It also was told to develop a workplace human rights policy and provide a mandatory human rights training program.
It’s one of the first rulings dealing specifically with elder care, according to Donna Seale, human rights lawyer, educator and workplace investigator in Oakbank, Man.
“It’s really a case that shows the expansion of the concept of what falls under family status.”
This decision opens up new doors for consideration when it comes to family status, said Michael Lynk, a law professor at the University of Western Ontario in London, Ont., adding it’s “one of the hottest, most dynamic areas” of employment law.
“If this case sets a precedent, it’s a precedent that’s going to affect the baby boom generation,” he said. “Cases on family status are going to continue to grow in importance as the nature of the Canadian family keeps on evolving and as we rethink and redefine what our familial responsibilities are, to children, spouses and to parents.”
With an aging population and people working longer, there’s going to be more demand on employees and, therefore, employers to accommodate this new reality, said Nora Spinks, CEO of the Vanier Institute of the Family in Ottawa.
“There are very few employers who have caregiving on their radar screen in any way, shape or form. And those that do assume that the combination of flex-hours and an EAP will take care of any and all caregiving requirements an employee may have,” she said. “Will employers adjust the programs, policies, procedures, practices the way they did with child care?... They’re not going to have much of a choice because there will be a labour shortage, there will be pressure to be more flexible, there will be fewer services proportional to people needing services.”
Formal accommodation never requested
Devaney did not ask for any special accommodation or treatment, though the firm was well-aware he was taking care of his mother. This was a big part of the problem, according to the tribunal.
“Neither the applicant nor the respondents, as professionals, ever initiated a meaningful dialogue in relation to accommodating the applicant’s elder care responsibilities,” said Eyolfson.
“The respondents infringed the applicant’s rights under the (Ontario Human Rights) Code by failing to meet the procedural aspect of their duty to accommodate the applicant’s code-related needs.”
Once an employer knows there is a potential human rights issue for an employee’s absence, it has the primary responsibility to
explore that with the employee, said Seale.
“If there is a suspicion that there is a family status reason why employees are having some sort of conflict with workplace requirements, they should sit down with them and have that discussion to either rule out that there’s an accommodation issue or find out if there is one,” she said.
To date, there hasn’t been any uniformity by arbitrators, courts and tribunals on how to apply the family status test, according to Lynk. A British Columbia case took a narrow approach, saying there has to be serious interference with a substantial family obligation in order for there to be a successful accommodation request; Ontario and Alberta took a middle approach in looking at the mitigating efforts of the employee to try to alleviate any conflicts between work and family obligations; and a broader, federal approach says any work-related interference with family obligations is discriminatory.
This case followed the latter, said Lynk.
“The stress in this decision was on what the employer did and didn’t do.”
But the debate will continue until the Supreme Court of Canada gives clearer direction, he said, adding many employers probably think there ought to be greater onus on employees to make sure home responsibilities are met before they turn to their employer for accommodation.
“There might be an argument from an employer saying, ‘It tilts the balance unfairly, we need a more pragmatic test to make it workable.’”
Caring for elderly parents probably is the hardest one for employees to win when it comes to the caregiving standard, said Lynk.
“Given the forms of care you have for an aging population and older parents, it’s a harder argument to win that the employee is the only person or in the best position to care for the elderly parent and, therefore, requires accommodation.”
The tribunal did admit Devaney was not always required as a caregiver as sometimes it was his choice to attend to his mother. It also mentioned the architect might have had the resources to finance more professional in-home care than was provided. But the tribunal didn’t seem to delve into this issue to any great extent, said Seale.
“There certainly was an element of choice here because he felt obliged, based on how his mother had cared for him, to take care of her in her older age,” she said. “If the more stringent test that had been used in the family status area was applied, they would have gone into that in more detail: What steps did he take to self-accommodate before requiring his employer to provide that accommodation?”
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