Getting too personal with family status accommodation requests

Conversations related to accommodating employees under human rights legislation can be difficult or awkward. These conversations often involve the intermingling of work requirements and intensely personal issues, like medical conditions or faith.

The proliferation of requests for family status accommodations has added discussion of childcare and, in some cases, eldercare to the mix.

While the law governing disability-related accommodations clearly defines what information employers may request, the legal boundaries in family status cases are less settled. Two recent grievance arbitration decisions help clarify what employers can — and can’t — ask in this context.

In the Alberta arbitration case of IBEW, Local 1007 v. Epcor Utilities, 2024 CanLII 119276, two employees, Boyko and Iacovone, asked to be accommodated when their employer informed them that their work location was going to be changed from the employer’s Edmiston, Alta., location to its Kennedale, Alta., location.

Boyko and Iacovone were not in a relationship or part of the same family, but both their requests for accommodation were triggered by the same employer decision, so their grievances were arbitrated together.

Accommodation request related to childcare

Both Boyko and Iacovone had young children. Boyko’s children were four, six, and eight at the relevant time. Iacovone’s were four, eight, and ten. At the time Epcor changed Boyko and Iacovone’s work location, their children were already walking home from school alone and waiting at home alone for about 15 to 20 minutes before a parent arrived home from work.

The change in work location meant that the children would be home alone each day for an additional 10 to 15 minutes.

While working at Edmiston, both Boyko and Iacovone raised concerns with Epcor about their children being at home alone, but they did not press the issue when Epcor told them they had no option.

When their work location changed to Kennedale, both workers became more uncomfortable because their children would be spending more time alone and because they had some negative experiences with the existing arrangements.

Epcor did not accept that either Boyko or Iacovone required accommodation, but management representatives met with them several times to discuss their finances and their family arrangements.

During these meetings, management representatives suggested measures such as reducing discretionary spending, limiting vacations, withdrawing children from extracurricular activities, becoming a single-car household, or refinancing the family home.

The majority of the board of arbitration held that this approach failed to meet the employer’s obligations under Alberta’s Human Rights Act. The board held that to trigger the duty to accommodate, the employees only needed to provide a high-level explanation of the conflict between their work obligations and caregiving responsibilities.

The majority of the board emphasized that whether employees had “self-accommodated” was irrelevant to establishing a prima facie case of discrimination. Thus, Epcor had no legitimate basis for asking very personal questions or suggesting lifestyle changes.

In calculating relatively modest damages for injury to dignity ($12,500 for each employee), the majority of the board took into account the harmful impact of the employer’s meetings and inappropriate discussions with the employees but declined to find that Epcor acted in bad faith or maliciously. Rather, in the view of the majority of the board, the employer’s actions were “guided by a misunderstanding of a complex area of the law.”

Requesting extensive information

The uncertainty surrounding employer inquiries in family status cases is further illustrated in the Ontario labour arbitration case of Bombardier Inc. v. Unifor, 2025 CanLII 99189. In Bombardier, the griever was a single mother living with her child, her parents, and her adult brother, who was subject to a Community Treatment Order because of past violent behaviour related to mental illness.

She requested straight day shifts instead of the usual shift rotation that included evening work, so that she could take care of her child in the evenings following an after-school program that ended at 6 pm. Having an external caregiver in the home was not a viable option because of the greiver’s brother’s illness and propensity for violence, and the cost of additional childcare was a barrier to the greiver making other arrangements.

Bombardier asked Abitrator Garzouzi to order the employee and her union to disclose extensive information so that it could understand the nature of the griever’s claim and assess the reasonableness of requested accommodation. The information Bombardier sought included what childcare options the griever had explored, the cost of those options, and detailed information regarding the griever’s overall finances, including childcare and education costs, health-related expenses, debt obligations, savings and investments, and persona/discretionary expenditures.

Arbitrator Garzouzi held that Bombardier’s request was too broad. Instead, she ordered the griever to disclose the steps she had taken to secure childcare beyond the after-school program, including the providers contacted, their availability, and the costs they quoted. Garzouzi did not require the griever to disclose her general household finances or the details thereof because, in Garzouzi’s view, the quoted childcare costs were sufficient information for the employer to assess whether cost was a genuine barrier.

Broad-ranging financial queries frowned upon

Arbitrator Garzoui’s order requiring disclosure of the costs quoted by childcare providers suggests that an employee’s ability to pay for care that would resolve a conflict between their work duties and their childcare or eldercare obligations is a not a completely irrelevant consideration in the accommodation process.

At the same time, Garzouzi’s denial of Bombardier’s request for more extensive information, taken with the Board of Arbitration’s censure of Epcor’s broad-ranging financial and lifestyle queries and suggestions, should be taken as a warning that employers should not engage in broad-ranging discussions about employees’ lifestyle choices.

Moreover, employers should not attempt to pre-empt the accommodation process by probing an employee’s efforts at “self-accommodation.” Rather, inquiries regarding the availability and cost of childcare — or elder assistance — should only be made once the employer has made it clear to the employee that they are considering their request for accommodation in good faith and as part of a collaborative dialogue directed towards identifying reasonable accommodations.

Chris Davidson is an employment lawyer and workplace investigator at Turnpenney Milne LLP in Toronto.