Can be triggered by ‘substantial obligation,’ not just serious interference
A landmark court decision has said employers have an obligation to try to provide accommodation for an employee’s child-care needs.
On Jan. 31, the Federal Court upheld the finding of the Canadian Human Rights Tribunal that the Canada Border Services Agency (CBSA) discriminated against an employee on the basis of family status for not accommodating her child-care needs.
“While in the past those requests might have been dismissed as not something the employer would need to consider, it’s clear the law has taken the direction that family status as a protected ground does contemplate child-care obligations may be something the employer does need to accommodate,” said Adrian Frost, a partner at Thompson Dorfman Sweatman in Winnipeg.
The employee, Fiona Johnstone, worked rotating shifts — including evening and overnight shifts — as a border services officer at Pearson International Airport in Toronto. After her maternity leave, Johnstone asked for three fixed daytime shifts of 13 hours each to accommodate her child-care needs.
CBSA had an unwritten policy that employees seeking fixed shifts to accommodate child-care arrangements had to take part-time shifts and it denied Johnstone’s request.
Johnstone then filed a human rights complaint saying she was discriminated against on the basis of family status and her case was heard by the Canadian Human Rights Tribunal, which ruled in her favour.
CBSA appealed to the Federal Court, which upheld the tribunal’s decision, saying CBSA’s policy was discriminatory, adding the agency had made accommodations around shift scheduling for full-time employees for religious and medical reasons.
The court also found the policy was “based on the arbitrary assumption that the need for accommodation on the basis of family obligations was merely the result of choices that individuals make, rather than a legitimate need.”
Previous cases have found there is only a duty to accommodate child-care needs when there is “serious interference with a substantial family care obligation.”
But the CBSA decision says a duty to accommodate can be triggered by any substantial family care obligation — not just serious interference, said George Vuicic, a partner at Hicks Morley Hamilton Stewart Storie in Ottawa.
“This is the issue employers have been wrestling with for a number of years: When is there a duty to accommodate? Which approach applies? Which should we follow? And how far do we need to go to accommodate requests for accommodation of child care or other family obligations?”
Employers should consider each case on an individual basis. The first step when faced with a request is to sit down with the employee and explore what she has done to try and arrange child care, said Frost.
In the CBSA case, the Federal Court said employees must show they have made reasonable efforts to solve their child-care needs before seeking help from their employer. Johnstone had explored various child-care options but found daycares only operated during regular business hours — which did not accommodate her rotating shifts — and a nanny was not a financially feasible option.
“She went to her local, regulated child-care provider, she went to an unregulated child-care provider, she placed ads in the newspaper for child care, she answered ads placed by providers… and she was unsuccessful on all those counts,” said Lisa Addario, legal officer at the Public Service Alliance of Canada (PSAC) in Ottawa, which represents 180,000 members, including CBSA workers.
“She was diligent in her efforts to try and make it work, and it was only when she arrived at a need to ask for a fixed shift that she turned to the employer and made that request.”
An employer should consider and assess all the options available to accommodate the employee — and the implications, said Frost. The tribunal chastised CBSA for failing to do so.
“In any accommodation situation, you want to show you’ve been reasonable, co-operative, you want to work to find solutions,” said Vuicic. “CBSA basically had a blanket policy… they refused to even consider accommodation. So it’s perhaps not surprising that they didn’t garner much sympathy from the court.”
An employer should keep in mind its duty to accommodate up to the point of undue hardship and one factor to consider is cost. An employer would have to prove any accommodation would affect the viability of an enterprise — but that’s a high threshold, said Addario.
Another factor to consider is how many people are being accommodated, as employers don’t have to accommodate every request, said Vuicic.
“For example, a smaller employer may receive several requests for accommodation, for different shifts or schedules, and it might be that it’s simply not possible to accommodate (them all),” he said. “Perhaps... it’s just too much of a disruption to your business.”
Undue hardship may also be reached if an employer can show the request to accommodate would compromise the health and safety of the person requesting it or of other people at the workplace, said Vuicic.
There are several ways employers can help employees balance work and family obligations. One way is flexible work schedules, said Robyn Benson, president of PSAC.
“We have compressed workweeks, we have members working 7 a.m. to 3 p.m. — there are a number of ways the employer can look to approving shifts for our members so they can accommodate child care.”
Working from home, job-sharing and on-site daycares are other options, said Vuicic. And it may be the worker simply needs a temporary arrangement, not a permanent one.
“Sometimes it’s just a matter of helping a person adjust to child-care obligations. For example, a new parent who’s returning to work after being on parental leave, with a new baby… sometimes they just need an adjustment over a certain period of time. So maybe allowing them a couple of months, six months, whatever, a reduced schedule or change to their hours,” he said.
With many people in the “sandwich generation,” family status accommodations may not just be needed for child care but for elder care as well, said Benson. And the duty to accommodate would be the same, said Vuicic.
“With our demographics heading the way they are, this is going to be more and more of an issue and really, there’s no reason why legally there’s any difference between someone who has a duty to look after their young children and someone who has a duty to look after their elderly and frail parents.”
