'If there are 20 steps in an accommodation process and you do 19, you're still in trouble'
“If there are 20 steps in an accommodation process and you do 19, you're still in trouble. You have to do it all right and there's not a lot of room for error.”
So says Lorenzo Lisi, leader of the Workplace Law Group at Aird & Berlis in Toronto, after a federal public sector employer seemed to grow weary of accommodating a worker’s childcare-related requests and deviated from its established accommodation process.
This led to a Federal Public Service Labour Relations and Employment Board finding of family status discrimination.
“There wasn't really malicious intent and it wasn't bad faith,” says Lisi. “The employer did make some [accommodation] efforts and then just grew tired of it a little bit and fell off following the process.”
Six problematic shifts
The worker was a border services officer for the Canada Border Services Agency (CBSA) at Toronto’s Pearson International Airport. She worked day shifts with a medical accommodation that she not work past 4 p.m., until she took maternity leave in January 2011.
Midway through her leave in July, she requested to work on a crew with shifts opposite to her mother – who was also employed by the CBSA – so that her mother could care for her child while she was at work. She said that only she, her mother, and her husband could care for the child, and her husband was a police officer with an unpredictable schedule.
The CBSA granted the request, allowing the worker to select start times of either 5 a.m. or 6 a.m.
In October, the worker identified six shifts from January to June 2012 when she, her mother, and her husband would all be working at the same time. She requested changes to those six shifts, but the CBSA didn’t respond. When she returned to work in January 2012, she inquired again and indicated that she had found childcare for one of the shifts, leaving five that needed changes.
Read more: The Federal Court of Appeal set the test for family status discrimination in two key decisions.
The CBSA’s accommodation committee rejected the worker’s request and suggested one of three options – trade shifts with a colleague, take vacation time, or investigate alternate childcare arrangements.
The worker responded that the daycares she had checked wouldn’t take her child for only one day a month or with an early drop-off time, and she couldn’t afford full-time enrollment. She also asked for an explanation of how her request caused undue hardship under the Duty to Accommodate Policy, but the CBSA didn’t respond.
The worker found alternate childcare arrangements for the first shift she had requested to be changed, but she was unable to find someone to trade shifts because of her accommodated hours, and she ended up taking vacation leave for three of the shifts. For one of the remaining shifts, she brought her concerns to the chief, who intervened and arranged a shift change.
The worker filed two grievances claiming family status discrimination.
Last-minute vacation leave request
On Nov. 22, 2012, the worker requested vacation leave of three hours on Nov. 25, as her husband had been called to duty and she needed to go home early to care for her child. The CBSA denied the request for operational reasons – it was Grey Cup Sunday and, due to numerous time-off requests, it was already operating with the minimum number of staff.
The worker resubmitted the request the next day, writing “family status issue” in capital letters. The request was denied once again.
The worker reported for work on Nov. 25 but she met with the superintendent to discuss the leave request. She ended up taking the three hours off as sick leave. The CBSA requested a medical note, but she didn’t provide one. Ultimately, the CBSA approved the three hours as uncertified sick leave.
The worker filed two more discrimination grievances over the denial of vacation leave.
Family status discrimination test
The board outlined the test for establishing family status discrimination as set out by the Federal Court of Appeal in Canada (Attorney General) v. Johnstone, 2014 FCA 110 – a child is under the employee’s care and supervision; the childcare obligation at issue engages the employee’s legal childcare responsibility; the employee has made reasonable efforts to find alternative childcare solutions; and the workplace rule interferes with those obligations in a “more than trivial or insubstantial” way.
It was agreed that the first two criteria were met, while the CBSA argued that the childcare obligation wasn’t seriously interfered with and the worker didn’t consider all reasonable alternatives.
The board found that the worker established that she had a “true childcare problem” in relation to her shift change requests and placing her childcare duties in the hands of herself, her husband and her mother was reasonable and not the easy way, as it involved significant work to co-ordinate her shifts with her mother’s and her husband’s work, said the board.
The board also accepted the worker’s explanation that it was difficult to find daycare for one day a month and there were limited options for shift trading because of her accommodated hours. While the CBSA argued it wasn’t a serious interference with her duties, the board said it only had to be “more than trivial or insubstantial,” which was the case here.
The board noted that the CBSA didn’t respond to the worker’s shift change request in a timely manner; nor did it provide an explanation for the rejection of her request or raise a bona fide occupational requirement – even though it had a policy requiring a manager to provide details in writing to justify the rejection of an accommodation request.
Accommodation fatigue
Although the CBSA argued that the worker didn’t make reasonable efforts to meet her childcare obligations, the worker was able to show her efforts while the CBSA didn’t follow its own process, says Lisi.
“The bottom line is this – the employer had a process and a protocol for accommodation requests and [the worker] made efforts for her own accommodation – she proved that she made significant efforts to try to get this done,” says Lisi. “And, most importantly, the adjudicator found that the employer did not follow its own policy with respect to the process for duty to accommodate.”
The CBSA started off well in terms of accommodation when it granted the worker’s request to work shifts opposite her mother as well as the early day shifts, but after that the employer seemed to tire of the process, he says.
“It's what I call accommodation fatigue that happens sometimes with employers and they tend to just say, ‘OK, enough is enough’ when they should continue with their process, ask the right questions, and work with the employee,” says Lisi. “Because at the end of the day, it's more work to fight one of these cases than it is to address the accommodation request appropriately.”
Read more: A federal government employee’s desire to help his spouse with childcare didn’t invoke a legal obligation requiring accommodation.
The board determined that the worker suffered an adverse impact from the CBSA’s failure to reschedule the five shifts in question. The evidence indicated that rescheduling for accommodation purposes was possible and the CBSA discriminated against the worker by not trying to accommodate her.
The board also found that the CBSA acted recklessly but there was no malice or bad faith, and the period of discrimination was relatively short at six months.
As for the vacation request for Grey Cup Sunday, there was no evidence that the worker tried to find alternative childcare arrangements and she didn’t raise the family status issue until two days before the requested day. When she used sick leave to take the time off, there was no further information about a childcare problem, said the board in dismissing those grievances.
The CBSA was ordered to credit the worker with the vacation leave she used for childcare on the days for which she had requested the shift change plus $3,000 in compensation for pain and suffering and $3,000 for recklessly discriminating against the worker.
Some good news for employers is that the board affirmed that reasonable accommodation doesn’t mean the employee is entitled to their preferred accommodation, says Lisi.
“The adjudicator pointed out the case law that says, ‘You're not entitled to your preferred accommodation, it just has to be a reasonable one,’” he says. “So the good part for employers is that there is an acknowledgement that it's not a ‘preferred accommodation’ approach – [employees] can't pick and choose whatever works best for them.”
See Chin v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 53.
