Recent court decisions could mean employers have to be more flexible in accommodating working parents
Teacher strikes seem to be an increasingly common occurrence. They struck last year in British Columbia, with a strike stretching from mid-June to mid-September. And this year, they’ve been rolling out in Ontario, starting with secondary schools and, more recently, elementary ones.
So what does this mean for employee accommodation when it comes to parents with kids? Recent court decisions suggest employers could be on the hook more so than in the past.
“We’re seeing a change, let’s say an evolution, in our society that’s making the needs of the family more interwoven into the fabric of society, so that the workplace is needing to accept and bend the rules a bit more than it used to,” said Nancy Shapiro, a partner at Koskie Minsky in Toronto.
Employers will have to step up more, according to Robin Gage, a partner at Underhill Gage Litigation in Victoria.
“New case law certainly will put a bit more onus on them to at least really take the steps to consider what is going to be possible, and being proactive in that respect — if you have some ideas before employees start coming to you and asking you, then that will help so you’re not reacting so much.”
When it comes to the protected ground of family status under the Canadian Human Rights Act, the 2014 Federal Court of Appeal case Canada (Attorney General) v. Johnstone is now being interpreted and accepted at a provincial level, said Shapiro.
“So workplaces pretty much across Canada will need to deal with the issue of family status accommodation for a parent-child relationship, most definitely.”
That case concerned an employee seeking accommodation for her work schedule at an airport. The employer refused to accommodate workers with childcare obligations on the basis it had no legal duty to do so. However, the court disagreed.
“Without reasonable accommodation for parents’ childcare obligations, many parents will be impeded from fully participating in the workforce so as to make for themselves the lives they are able and wish to have,” said Justice Robert Mainville.
In advancing such a claim, the court said a worker must show:
•a child is under his care and supervision
•the childcare obligation engages his legal responsibility for that child, as opposed to personal choice
•he has made reasonable efforts to meet childcare obligations through reasonable alternative solutions and no such alternative solution is reasonably accessible
•the impugned workplace rule interferes with the fulfillment of the childcare obligation in a way that is more than trivial or insubstantial.
It’s all about showing you’ve made reasonable efforts around childcare, said Shapiro.
“They have to come to the employer and talk and dialogue about everything they’ve done to try to accommodate the needs of their family and to satisfy a third party — who might hear such a case at some point in time — that they’ve done everything that would be reasonable to find an alternate solution. So it’s an individual thing — it’s not going to be that every parent who’s impacted by the strike will suddenly be able to take (time) off work… that wouldn’t be an automatic solution.”
The old test, requiring a change in the working conditions or rules, was hard to meet, according to Sarah Molyneaux, a lawyer at McMahon Morrison Watts in Toronto.
“This is a change to your responsibility, it’s not a change to the rule, so I’m not sure how the old test would have interpreted accommodating parents during a strike. But I think the new test definitely captures those parents.”
Employers should also be aware of employment standards legislation that could apply during a teachers’ strike. In British Columbia, for example, the employment standards have changed to include a “family responsibility leave” that allows an employee to take five days of unpaid leave, said Gage.
“Childcare obligations would likely fall within that definition.”
The leave can be granted to a person needing to meet responsibilities related to “the care, health or education of a child in the employee’s care or the care or health of any other member of the employee’s immediate family.”
Ontario’s employment standards also provide protections through a “personal emergency leave” when it comes to employers with more than 50 workers, said Molyneaux.
“Your employees have a right to personal emergency leave, which is 10 unpaid days of leave, and those are normally the days that employees use for sick days or to care for a sick or injured family members but they can also be used in this type of situation,” she said. “That would certainly be one avenue for employers to accommodate the strike, at least in the short term.”
However, Shapiro disagreed.
“That’s not the intention of this provision. A strike at a school is not what I would say to be an urgent matter concerning an individual… (that) could be something like your child was arrested and is at the police station but it’s not some prolonged condition that might require you to be off work for weeks or months,” she said. “This wouldn’t fall under any of those care provisions for family members — nobody’s at risk of dying or anything like that — so this is a human rights issue.”
When it comes to accommodation options, these could include flexible hours or personal days. Working from home is also an option and that’s where undue hardship comes in, said Molyneaux.
“An employer isn’t required to give the perfect accommodation, so maybe for a lot of parents, working from home is the perfect accommodation but if you deal with a lot of sensitive information that can’t be taken home or your job is just not one that transfers well at home, then that might not be reasonable accommodation for your employer to provide,” she said.
“If it’s possible but just a little difficult, I think employers still have (a) duty to look into how they can make that accommodation happen.”
For example, having an IT guy put in the hours to get an employee set up to work from home is not necessarily undue hardship.
“An employer is required to contribute those kinds of man hours and costs to make it work,” says Molyneaux.
Employers might even consider providing some kind of child- minding service, such as a boardroom where kids can hang out.
“That would be a big undertaking probably more suitable for some types of employers than others,” she said. “You have safety concerns to think about, as well as productivity.”
And employers should be aware of possible feelings of resentment among employees. Unfortunately, that’s a reality for a lot of accommodation at work, whether it’s around a disability or religious belief, she said.
“That’s not meant to be a factor that an employer considers in evaluating whether it can make a reasonable accommodate to the point of undue hardship,” said Molyneaux. “It’s always an individualized inquiry. Employers want to be as fair as possible, of course, and in the interest of fairness might decide to give more equal accommodations to different parents. But their legal obligation is to give an accommodation based on the individual needs of that parent and their family, so it’s very likely that those would be different for parents, even if their children are only a couple of years different in age.”
Ultimately, it’s a matter of having open communication with employees, said Gage.
“If you have that sort of supportive workplace where people are feeling appreciated, I suppose, and supported, then you’re less likely to get resentment on any of those issues.”