Accommodating family needs

Adjusting work hours to accommodate an employee's family demands

Colin Gibson
Question: Does an employer have any legal obligation to accommodate an employee's personal or family needs by providing flex time or adjusting work hours?

Answer: Generally speaking, an employer does not have an obligation to grant an employee’s request for flex time or other changes to work hours, absent a contractual or collective agreement requirement. However, a duty to accommodate an employee’s child care or other family needs may arise under human rights legislation.

Most human rights statutes prohibit an employer from discriminating against an employee on the basis of “family status.” In Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society, the British Columbia Court of Appeal ruled a prima facie case of discrimination will be established when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial family duty. The employee in this case was a child and youth support worker. She had four children, including a child with severe medical and behavioural problems who required specific parental and professional attention.

The employer notified the employee that, for operational reasons, the start time of her shift was being moved forward three hours. She worked the new shift for a few weeks and than claimed she could not continue because the shift interfered with her child-care obligations. The employer refused to adjust the shift and she went on sick leave. She was subsequently diagnosed with post-traumatic stress disorder and she never returned to work.

At arbitration, the union claimed the employer had violated the Human Rights Code by discriminating against the employee on the basis of her family status. The union argued “family status” included the fiduciary obligation of parents to care for their children. The arbitrator rejected the union’s argument and dismissed the grievance. He interpreted the phrase “family status” to mean the status of being a parent per se, not the individual circumstances of a family’s needs, such as child-care arrangements.

On appeal, the B.C. Court of Appeal concluded the arbitrator’s interpretation of “family status” was too narrow and did not address the potential for discriminatory impact some employer decisions may have on the family obligations of employees. The court acknowledged “family status” cannot be an open-ended concept, as that “would have the potential to cause disruption and great mischief in the workplace,” and ruled whether the particular conduct of an employer gives rise to a prima facie case of discrimination on the basis of family status, will depend on the circumstances of each case. The court stated:

“In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me that a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee. I think that in the vast majority of situations in which there is conflict between a work requirement and a family obligation, it would be difficult to make out a prima facie case.”

The court concluded the new work shift resulted in serious interference with the employee’s ability to fulfil her family obligations. Additionally, the worker’s situation was further complicated by her subsequent illness. Thus, the union had made out a prima facie case of discrimination.

Similarly, in Canada Post Corp. v. Canadian Union of Postal Workers, an arbitrator reinstated a casual employee who was dismissed after refusing a call-in because of her child- care obligations. The collective agreement required casual employees to be reasonably available to work both extended and on-call assignments. but the employee had repeatedly refused to work on-call assignments. The employer dismissed her when she refused, at 6 a.m., to accept a shift which began at 7 a.m. She said she could not organize child care on such short notice. The employee explained her son had developed behavioural problems and was difficult to manage by anyone other than her. One child-care facility had refused to take her son because of his anger and violence towards other children. The arbitrator ruled the employer discriminated against the employee on the basis of her family status when it failed to consider her reasons for refusing the assignment and made no attempt to accommodate her.

These decisions have established employees may be entitled, in certain circumstances, to have important family obligations accommodated by their employers to the point of undue hardship. Faced with a request to accommodate an employee’s family obligations, an employer must first assess whether a denial of the request could constitute discrimination. If so, the employer must consider whether the accommodation can be granted without undue hardship.

For more information see:

Campbell River & North Island Transition Society v. H.S.A.B.C., 2004 CarswellBC 1012 (B.C. C.A.).

Canada Post Corp. v. Canadian Union of Postal Workers, [2006] CLAD No. 371 (Can. Lab. Arb. Bd.).

Colin G.M. Gibson is a partner with Harris & Company in Vancouver. He can be reached at [email protected] or (604) 891-2212.

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