Is there a risk of family status discrimination if an employer refuses a work from home request because their child's regular daycare closes?
by Amy Gibson, MLT Aikins, Saskatoon
Question: Is there a risk of family status discrimination if an employer refuses an employee’s request to work from home because their child’s regular daycare closed down due to an outbreak of COVID-19 or another communicable illness?
Answer: There is a risk that refusing to accommodate an employee’s request to work from home due to a lack of childcare could result in a claim of discrimination on the basis of family status. However, there are three separate Court of Appeal authorities in different jurisdictions dealing with family status discrimination issues, so employers should seek legal advice in their jurisdiction.
The test to establish prima facie discrimination is set out in the Supreme Court of Canada decision of Moore v. British Columbia (Education). A complainant must have a characteristic protected from discrimination; experienced an adverse impact; and the protected characteristic must be a factor in the adverse impact.
The Federal Court of Appeal in Canada (Attorney General) v. Johnstone modified this test for family status matters, adding a fourth requirement — that the complainant must demonstrate that reasonable efforts to self-accommodate were taken. This differs from the test in Alberta and raises the threshold for a finding of prima facie family status discrimination.
In Alberta, the province’s Court of Appeal recently refused to the follow the approach set out in Johnstone in the case of United Nurses of Alberta v. Alberta Health Services, and instead affirmed Moore is the appropriate test for establishing prima facie discrimination. The court indicated that employers must be careful to not shift the burden onto employees to show efforts of self-accommodation and instead must focus on how the workplace rule and policy affects the individual employee’s family obligations. This means employers in Alberta can no longer insist that an employee seeking a family status accommodation establish that they have taken every possible self-accommodation step before requesting a workplace accommodation from the employer. Once prima facie discrimination on family status grounds has been established, the onus shifts to the employer to establish that it diligently worked with the employee to find a reasonable accommodation. It is at this second stage of the analysis that self-accommodation measures may be considered.
British Columbia has the most stringent standards for establishing prima facie discrimination as set out in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society. This B.C. Court of Appeal case established that prima facie 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. This test narrows the scope of the family status discrimination test and has not been widely followed outside of British Columbia.
These decisions of three different Courts of Appeal in Canada create uncertainty when dealing with family status discrimination claims. It is important for employers to seek legal advice in their jurisdiction, as what may require accommodation in one jurisdiction may not require accommodation in another.
For more information, see:
- Moore v. British Columbia (Education),  3 S.C.R. 360 (S.C.C.).
- Canada (Attorney General) v. Johnstone, 2014 FCA 110 (F.C.A.).
- United Nurses of Alberta v. Alberta Health Services, 2021 ABCA 194 (Alta. C.A.).
- Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (B.C. C.A.).
Amy Gibson is an associate with MLT Aikins in Saskatoon, practising general labour and employment law. She can be reached at (306) 956-6994 or [email protected].