Giving unpaid leave to care for kids
Question: Is there a risk of family status discrimination if an employee is only given unpaid leave to care for a sick child?
Answer: Canadian jurisprudence is clear that childcare obligations are within the scope of the definition of family status, which was defined in Brown v. Canada (Department of National Revenue - Customs & Excise) as “a parent’s right and duty to strike that balance (between work obligations and child rearing) coupled with a clear duty on the part of an employer to facilitate and accommodate that balance.” In fact, the ground of family status is included in human rights legislation in most provinces across Canada and has been in the Canada Human Rights Act since 1984.
With respect to the test for family status discrimination, courts and tribunals across the country have taken varying views on this issue. The leading British Columbia authority on discrimination based on family status is Campbell River & North Island Transition Society v. H.S.A.B.C., which found employees are required to prove a change in employment which results in serious interference with a substantial family obligation. In contrast, federal labour arbitrators and the Canadian Human Rights Tribunal have rejected the Campbell River approach and found in favour of employees when a rule or practice has the effect of limiting the conditions or opportunities of employment on the basis of a characteristic relating to their family. These decisions have suggested the broad approach to family status is consistent with human rights principles that protect against any discrimination based on a prohibited ground.
Notwithstanding that the law is in a relatively unsettled state, and assuming accommodation is required in these circumstances, the issue here is what an employer must do to meet its duty to accommodate an employee who has to care for a sick child. Case law suggests an inflexible or “blanket” policy stipulating an employee to take unpaid leave may be discriminatory: for example, see the Federal Court decision in Johnstone v. Canada (Border Services Agency). As such, it is wise for employers to ensure any accommodation policy is broad and flexible so it may be adapted to the unique needs of individual employees. For example, it may — though not necessarily — be a reasonable accommodation to provide unpaid leave to an employee to tend to a child with a 24-hour flu. That said, it may in such circumstances be more appropriate to offer flexible hours or even a work from home option, provided it does not result in undue hardship to the employer. On the other hand, only providing unpaid leave to an employee who is required to tend to a long-term sick child may not satisfy the duty to accommodate. This situation could involve unique issues that may require some other accommodation. The employer would do well to canvass alternative ways by which the employee may be reasonably accommodated.
Additionally, it will be important to provide employees with family-care leaves as per the applicable legislation. The key for employers is to show that the individual requiring time off to care for her sick child was not treated differently with regard to her absence from work in relation to family status.
Ultimately, accommodation situations tend to be very fact-specific. There is no cookie-cutter mould that can be, or should be, universally applied to. Employers should make good-faith efforts to work with individual employees to fashion reasonable accommodations when the need arises.
For more information see:
• R. v. Cole, 2012 CarswellOnt 12684 (S.C.C.).
• University Hospital v. London & District Service Workers’ Union, Local 220, 1981 CarswellOnt 2007 (Ont. Arb.).
• Brown v. Canada (Department of National Revenue - Customs & Excise), 1993 CarswellNat 2658 (Can. Human Rights Trib.).
• Campbell River & North Island Transition Society v. H.S.A.B.C., 2004 CarswellBC 1012 (B.C. C.A.).
• Johnstone v. Canada (Border Services Agency), 2013 CarswellNat 152 (F.C.).
