Ontario arbitration sets boundaries on what employers can demand from workers seeking family status accommodations
In a recent Ontario labour arbitration, Bombardier Inc. v. Unifor clarified the boundaries around what information employers can request when employees seek family status accommodation.
The case arose when the employee, hired in 2017 as an installer working straight day shifts, successfully completed a competitive apprenticeship program to become a tool and die maker. The new role required rotational shifts including days, afternoons and nights, which created conflicts with her caregiving responsibilities.
The employee was aware of the rotating shift requirement prior to the employer-funded apprenticeship.
The arbitrator ordered the union to provide full particulars about childcare options explored by the employee, including providers contacted, hours of operation, costs quoted and reasons why options were not reasonably available.
However, the board rejected the employer's request for extensive financial disclosure, ruling that only childcare-related costs were relevant.
Michael Horvat, partner at Aird & Berlis, says the decision aligns with established legal principles around family status, but demonstrates the expansion of family status protection beyond discrimination based on family relationships.
“It has now been more recently updated and interpreted as being an element of acknowledging childcare and elder care as potentially limiting features that need accommodation in the workplace."
Process failures create legal risks
The decision highlights common procedural mistakes that expose employers to legal challenges, stating that accommodation is “a tripartite inquiry, requiring meaningful participation from the employee, the union, and the employer.”
Horvat emphasizes that process failures are where many employers stumble.
“That's what this case highlights,” he says, outlining the essential elements of what employers have a responsibility to inquire about “to get an understanding as to what the nature of the restrictions are, what's the basis for them, and are there alternatives.”
He warns that employees also make mistakes by assuming family obligations automatically warrant accommodation.
“I think where employees make the mistake is simply stating, ‘Well, I have this familial obligation, so I don't need to make any further steps,’” Horvat says. Without proper disclosure, employers cannot meaningfully participate in the accommodation process or prepare informed responses to requests.
“Simply stating that the very fact that they have a child or elder parent is sufficient in and of itself to require accommodation … it's not."
Distinguishing requirements from preferences
The Bombardier decision reinforces that employees must demonstrate genuine need rather than mere preference for schedule changes. The arbitrator specified that employees must detail reasonable efforts made to obtain childcare and explain why available options were not feasible.
The employee explained why external care in the home was not feasible and indicated that efforts to secure care outside the home had been "difficult and unsuccessful." However, the arbitrator found these general statements insufficient and ordered more detailed particulars about specific alternatives that were explored.
This requirement reflects the legal principle that accommodation addresses limitations, not preferences, says Horvat.
“For employers, there needs to be a reasonable analysis as to what the employee is requesting as a preference or requirement,” he says.
“If it's a requirement, it should be accommodated to the point of undue hardship. If it's a preference, that can be then put back to the employee as not a reasonable alternative."
However, the line between requirement and preference in accommodations and flexibility can be hard to find, he admits, which is why each case must be assessed carefully and individually – for example, “I'd like to be home at five o'clock because I'd like to be home when my child comes home from school,” is not the same as “I need to be home at five o'clock because my child is eight years old and alone.”
Family status accommodations: practical guidance
While the Bombardier case required specific childcare-related disclosure, the arbitrator drew the line at detailed financial information, noting the employee had not asserted general financial hardship.
As Hornat explains, employers should focus their information requests on factors directly relevant to the accommodation assessment. Broad fishing expeditions into personal circumstances will usually be deemed inappropriate; the key is demonstrating the connection between requested information and the accommodation decision.
Employers also benefit from establishing regular review processes for ongoing accommodations rather than treating them as permanent arrangements, he adds.
“What may not have been a necessary accommodation when it was requested when the child was in grade school may be a reasonable request when the child's in high school, because maybe they're developmentally challenged or have other issues that are no longer being met from other programs,” he explains.
“That goes both ways though. An employer can request an update from an employee.”
