What are an employee's obligations in trying to arrange childcare before an employer should be expected to entertain a request for accommodation such as altering hours of work?
Question: What are an employee’s obligations in trying to arrange childcare before an employer should be expected to entertain a request for accommodation such as altering hours of work?
Answer: The obligation of an employee to arrange childcare prior to seeking accommodation is the third of four factors required to establish discrimination on the basis of family status. This is a factor that requires the employee to make reasonable efforts to meet childcare obligations through reasonable alternative solutions and to demonstrate that such efforts have been expended but that no such alternative is reasonably accessible.
Decision-makers have noted that employees will be called upon to show that neither they nor their spouse can meet their enforceable childcare obligations while continuing to work, and that an available childcare service or an alternative arrangement is not reasonably accessible to them so as to meet their work needs. It must be shown that both the employee and their spouse are unable to provide the childcare needed on a reliable basis. Determining whether this leg of the test has been satisfied is highly fact specific and all of the circumstances in each case will be taken into account. Courts have held that
employees go far enough in satisfying this portion of the test when they investigate numerous regulated childcare providers, both near home and near work as well as unregulated childcare providers, including family and even a live-in nanny. Cases have held that employees will not satisfy this obligation where their decision is based upon personal preferences. This can include seeking accommodation from the employer so they can stay home to ensure their culture and language is passed on to their child, so they don’t have to pay for full-time childcare or a more expensive childcare option, because leaving the child with family members has created family arguments, or because a day camp would be cost prohibitive without proof.
As outlined above, the analysis of these situations is fact specific. Employers that are being asked to accommodate employees on the basis of family status should consider the individual circumstances and seek advice.
Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975-7144 or [email protected]