Balancing work, family: Who is responsible?

Family status accommodation trending towards inclusion of parental obligations

By Jeffrey R. Smith

It can be pretty stressful and very busy to be a working parent.

The decision to have children while maintaining a career is a big one, and having both a family and a good career is something a lot of people have. While most parents in Canada have up to one year’s leave to look after a new baby, things can get crazy once it’s time to go back to work. Finding the balance between work and family obligations can be tricky. But how much of that onus should be on the employer?

In the last few years, family status has become a significant ground requiring accommodation on the employer’s part. In most jurisdictions, it is included alongside other protected grounds from discrimination in human rights legislation. But in many cases family status isn’t fully defined, which leaves a lot open to interpretation. What type of family status requires an employer to accommodate an employee? A sick child? Caring for an elderly relative? Taking a child to soccer practice? This is a question that worries some employers, who fear opening the door too much to accommodating just about anything.

Recently, the Federal Court looked at the case of a Canadian National (CN) rail employee based in Alberta who had been assigned to cover staff shortages in Vancouver (Canadian National Railway v. Seeley, 2013 CarswellNat 149 (F.C.)).

The employee had two small children and her husband — also a CN employee — often worked long shifts. The employee had few child care options and asked CN for an extension of her reporting deadline or to be excused from the assignment because of her parental obligations. CN refused, saying it was a personal decision to have children and it was her responsibility to balance her work and family obligations.

The Canadian Human Rights Tribunal sided with the employee, finding CN discriminated against her on the basis of her family status. CN appealed to the Federal Court, but the court agreed with the tribunal, finding parental duties were central to the notion of family status and it was the intention of human rights legislation to interpret it broadly. CN should have at least investigated accommodation options, rather than simply laying all the responsibility on the employee — especially since the railway was aware of possible child care options in Vancouver, said the court. The court upheld the tribunal’s order to reinstate the employee with compensation for lost wages and benefits, along with $35,000 in damages.

There have been other recent decisions dealing with similar circumstances — parents asking for accommodation due to child care difficulties — with differing results. Earlier decisions leaned more towards finding employers didn’t have to accommodate “normal” parental obligations, only more extreme circumstances such as caring for a special needs child. However, the above decision and others show the tide may be turning more towards accommodation being required for regular parental needs when employees don’t have many options for child care.

Some employers have argued this could open the door for numerous accommodation requests by any employees with children, and accommodating all of them isn’t feasible. As with many employment law areas, it will often come down to the individual facts of each case. But when it comes to employees with children and their child care needs, who is responsible when it comes to finding the right balance between the responsibilities of the job and those of the family?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected] or visit for more information.

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