Lawyer cites risks of ‘requiring an employee to exhaust all alternative solutions'
The Federal Public Sector Labour Relations and Employment Board has dismissed a grievance by a federal worker alleging that her employer failed to accommodate her family status related to childcare responsibilities.
The worker was a border services officer for the Canada Border Services Agency (CBSA) starting in 2003. In 2007, she transferred to traffic operations at Edmonton International Airport. In 2009, she became pregnant with her second child and went on her second maternity leave.
Border services officers deal mainly with passengers arriving on international flights and work on a rotating shift schedule every 56 days. Each employee received their 56-day schedule two weeks in advance and they were allowed to trade shifts subject to management’s approval.
While the worker was on leave, her husband started working part-time for CBSA as a border services officer.
In March 2010, the worker asked if she could work in the commercial office – which had regular daytime hours from Monday to Friday – when she returned so she could better organize childcare when her husband was also working. However, the CBSA said there were no vacant positions there.
Family status accommodation
In June, the worker filled out a form requesting accommodation for her family status. She arranged for childcare for her two children from 7 a.m. to 5 p.m., Monday to Friday, and indicated that she didn’t have childcare on nights and weekends when her husband’s shifts overlapped with hers.
CBSA management met with the worker to discuss accommodation. The worker explained that she couldn’t afford or have room for a live-in nanny and it wasn’t fair to rely on family for childcare on a regular basis. Her manager agreed to change her husband’s shifts so he didn’t work evenings or weekends during the worker’s upcoming mandatory training in Winnipeg, and she gave the worker a copy of the master schedule to see if any of the shift lines would meet their needs.
The worker returned to work on Aug. 16. After she returned from the training in Winnipeg and for the balance of that shift schedule, her shifts only overlapped with her husband’s when her daycare was open. The manager checked in with the worker on Aug. 20 and the worker replied, “we are making things work.”
The next 56-day schedule began on Sept. 27, during which the worker’s husband began working full-time. Before it started, the worker asked for an update on her accommodation request, to which the manager asked for an update on her search for additional childcare. The worker replied by identifying conflicts in the schedule and the CBSA agreed to change the husband’s shifts.
However, the CBSA continued to ask about the worker’s efforts to find alternative childcare options, suggesting she ask family, neighbours, or co-workers – which is problematic, says Nhi Huynh, an employment lawyer at Williams HR Law in the Greater Toronto Area.
“Part of the employer's role in the accommodation process is to ensure that the information relating to accommodation requests is kept confidential, so an employer shouldn't be asking an employee to broadcast their personal information and their accommodation needs,” says Huynh.
Ongoing shift changes for accommodation
Over the course of the schedule, the worker identified overlapping shifts and brought them to the CBSA’s attention. The CBSA changed either the worker’s or her husband’s schedule nine times so they didn’t overlap when childcare wasn’t available, although this was usually done a few days before the scheduled shifts. There were also three shift trades and on one weekend when they both worked, the worker’s family looked after her children.
In November, the CBSA informed the worker that she would be accommodated through schedule adjustments, although the nature of the accommodation might change over time. The worker said she felt “considerable stress and anxiety” over how the accommodation was proceeding, as she never had much notice and was worried about getting childcare.
The next 56-day schedule began on Nov. 22 and the manager, after being prompted by the worker, proactively identified six days of overlap between the worker and her husband. The worker said there were more conflicts between her shifts and childcare hours, particularly during the holiday period. They discussed some shift changes and the CBSA approved them for the entire schedule.
At the end of the schedule on Jan. 16, 2011, the worker was offered an assignment at the commercial office, which fully accommodated her childcare needs. In total, the CBSA made 30 shift changes for the worker and her husband before she joined the commercial office and the worker never had to take leave or lose a shift to care for her children.
However, the worker filed a grievance alleging that she wasn’t reasonably accommodated from the period when she returned to work until she started working at the commercial, pointing to the “ad hoc” nature of changing her shifts with short notice. She argued that the accommodation process placed an unreasonable burden on her, causing stress and anxiety, and she criticized the CBSA for requiring her to seek alternative childcare options, including asking colleagues and neighbours for assistance.
Childcare obligation
The board applied the legal test set out in Canada (Attorney General) v. Johnstone, 2014 FCA 110, which requires an employee to demonstrate that a child is under the worker’s care, the childcare obligation engages her legal responsibility for her child, she made reasonable efforts to meet her childcare needs, and there was a significant interference with her childcare obligations. If the worker met that test, then the CBSA would have to show that the worker was accommodated or could not be accommodated without undue hardship.
The CBSA argued that the worker didn’t meet the test because she didn’t experience any direct interference with her childcare duties, as all necessary shift adjustments were made.
The board noted that while the worker initially had to identify overlapping shifts and request changes, her schedule was always adjusted accordingly and this wasn’t an unreasonable burden on the worker. By November 2010, management took a more proactive approach, identifying conflicts in advance and implementing necessary changes before the start of new scheduling periods.
The board acknowledged that the CBSA’s requests for the worker to seek alternative childcare solutions were unreasonable and the short-notice shift changes put stress on her. However, it noted that, in the federal jurisdiction, there was no separate procedural duty to accommodate beyond ensuring that reasonable accommodation was provided. It also noted that the duty to accommodate involves reasonable, not instant or perfect accommodation.
Although the CBSA didn’t have to live up to a procedural duty to accommodate, an employer in many provincial jurisdictions would likely be in trouble for similar actions, according to Huynh.
“Typically, the failure to accommodate procedurally includes failing to take the steps by consulting with the employee or considering different ways to accommodate the employee, but in this case the CBSA took it a step too far,” she says. “By instructing the employee to engage in steps that weren't reasonable, it wasn’t meaningful to the accommodation process and had the effect of delaying the accommodation for the employee.”
Duty to accommodate
However, Huynh cautions that, regardless of whether it’s in the federal or provincial context, employers can expose themselves to legal liability if they don’t handle accommodation well.
“Ultimately, the accommodation was granted even though there were areas of concern for the board,” she says. “Employers should still make efforts to fulfill their obligations in a way that's reasonable and respectful to the employee, just so they don't open themselves up to liability, wherever it might land.”
The board determined that the CBSA met its duty to accommodate, pointing to the fact that the worker didn’t have to miss a shift due to childcare needs and the purpose of accommodation is to ensure that the employee can work. The grievance was dismissed.
Even without the procedural duty, an employer in the federal jurisdiction could still face liability for not treating an employee well during the accommodation process, says Huynh.
“An employer potentially could face punitive damages if the conduct was bad enough, although it may be difficult to demonstrate that if the employee ultimately received accommodation,” she says. “It’s a good reminder why employers should take employees’ accommodation requests and the information the employee provides regarding their accommodation needs in good faith.”
Reasonable alternatives
Federally-regulated employers should also understand that the Johnstone test doesn’t require the employee to exhaust all alternative solutions; they only need to exhaust reasonable alternative solutions, say Huynh.
“Requiring an employee to exhaust all alternative solutions, even the ones that won’t help them participate in the workplace or that will affect their dignity, will expose the employer to potential liability,” she says. “Similarly, provincially regulated employers should understand the same self-accommodation requirement doesn’t apply to their employees with family status needs – other possible available childcare supports are merely considered to evaluate the adverse impact and whether the employee participated in the accommodation process.”
