Recent cases stretch — and limit — employer’s duty to accommodate workers with children
Family demands on employees are much more of a factor for employers than they used to be. There’s a lot of attention being paid to work-life balance and supportive workplaces, both for recruitment and retention purposes as well as legal concerns such as accommodation and just cause.
A couple of recent cases have focused on the rights of employees who are parents — one that could make employers wonder how much employees with family demands have to be accommodated and another that some might see as mercifully placing a limit on that accommodation.
The case that could make employers a little nervous involves an Ottawa couple who applied for the 35-week maternity leave. Yes, the couple applied — not just one parent. And they didn’t want to split up the 35 weeks between them like many do, they each wanted 35 weeks. The request stemmed from the fact the mother, Paula Critchley, gave birth to twin girls. Critchley and father Christian Martin each applied for parental leave for one of the babies.
Critchley was awarded the usual 15 weeks’ maternity leave plus 35 weeks’ parental leave for one of the babies. Martin was turned down because EI law says 35 weeks can only be provided for a single pregnancy or adoption, not each birth.
Martin claimed caring for two babies was too difficult and overwhelming without both parents present. He also said it was unfair and discriminatory to only allow one set of benefits for two babies just because they were born together since, if they had been born separately, they would be entitled to 35 weeks of parental leave for each baby.
The Employment Insurance Board of Referees ended up awarding Martin parental benefits for one of his daughters. It said both parents suffered from “onerous household obligations” related to the birth and agreed each parent could make a separate claim for one of the babies.
Though the decision is not binding to future cases, one could assume a door has been opened that could lead to similar findings in the future. If an employee or employee’s spouse has multiple births, parental leave might get a little more complicated. Will employers be able to challenge employees who want similar rights? Will it cause employers even more trepidation about having employees in a relationship if both could be lost to parental leave at the same time?
However, employers may breathe a little easier after the British Columbia Human Rights Tribunal put a limit on accommodating employees with parental obligations. Family status has become an increasingly prominent area requiring accommodation under human rights legislation, including parents’ rights to care for their child. However, the tribunal made it clear there is a difference between special family obligations and normal, everyday responsibilities.
Steven Falardeau of North Vancouver was a single father working at Ferguson Moving. His hours were irregular and depended on what moving jobs had to be done that day. He usually worked until 2 p.m or 4 p.m. but sometimes he would have to work as late as 8 p.m. When this was the case, Falardeau had his parents or girlfriend pick up his 10-year-old son from daycare at 6 p.m.
One day in November 2007, his employer asked Falardeau to start a new job late in the day that would require some overtime work. Falardeau refused, saying he needed to be home for his son and had the right to refuse the overtime. But Ferguson said occasional overtime was part of the job and fired him for refusing to work the extra hours.
The tribunal found Falardeau had indicated to Ferguson he could find someone to look after his son and did so on many occasions when he worked overtime. It also found overtime was expected as part of his position and his son didn’t have any special needs that made Falardeau “uniquely qualified” to look after him. As a result, Falardeau only had to balance the “ordinary obligations” of a parent with his job and Ferguson was not required to accommodate him by allowing him to refuse overtime.
The line can be fuzzy over what constitutes a substantial parental obligation that often has to be accommodated and an ordinary one that doesn’t. Parents will be the first to tell you even ordinary parenting duties, especially for single parents, can be demanding. Balancing them with work can sometimes be difficult. But how far do employers have to go to accommodate them?
Looking at the first case, is looking after twin babies a substantial obligation that should be accommodated or a normal parental duty? Since the difficulty of caring for twins was one of the factors in giving Martin parental leave, would he have to be accommodated in certain ways once he returned to work — for the same reasons?
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information, visit www.employmentlawtoday.com.