Thicker than water

If your loved ones need to be cared for, how easy is it for you to take some time off work to do it?

It needs to be easier, according to a new report by the Institute of Research on Public Policy (IRPP). The report, titled Designating Paid and Protected Employment Leaves for Short-Term Sickness and Caregiving, calls on governments across Canada to improve job-protected paid sickness and caregiving leaves for workers. While many governments have jacked up such leaves during the pandemic, the IRPP points to this as proof that the system wasn’t good enough in the first place.

Early in the pandemic, Prime Minister Justin Trudeau said that his government would make sure all Canadian workers would have access to 10 paid days of sick leave per year. The main focus of this initiative would be to help people recover from COVID-19 or care for someone in their family who contracts it, but it could apply to any type of illness. The IRPP proposes 15 days.

Employment standards legislation in many jurisdictions addresses some sort of compassionate care or family caregiving leave. For example, in Ontario, are entitled to up to eight weeks of unpaid, job-protected leave per calendar year to care for a family member with a serious medical condition. Federally, workers can access employment insurance caregiving benefits for employees or need to take time off to care for or support a critically ill or injured person or someone needing end-of-life care. The benefit for caring for children can last up to 35 weeks, for adults up to 15 weeks, and compassionate care benefits for end-of-life care can be up to 26 weeks.

Regardless of how many paid days employers are required to provide by legislation, there remains an element of accommodation when it comes to employees caring for family members. One of the landmark decisions in this area is Johnstone v. Canada (Border Services Agency), in which the Federal Court of Appeal confirmed the test for family status discrimination. The test involved the following:

• A child is under the workers’ care and supervision.
• The childcare obligation at issue engages the worker’s legal responsibility for that child, as opposed to a personal choice.
• The worker has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible.
• The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

A couple of years after Johnstone, the Ontario Human Rights Tribunal found that a different approach should be taken with regards to a worker’s eldercare obligations. The tribunal disagreed with the idea that the test for family status discrimination should be broader, without the requirement that the issue must engage a legal responsibility or that the worker hasn’t tried to self-accommodate. Instead, family status discrimination could flow from the “nature of the relationship” rather than a legal responsibility, said the tribunal.

A couple of years ago, the Alberta Court of Queen’s Bench also dismissed the idea that whether the worker tried to self-accommodate should be factored into a discrimination analysis, although it noted that it can be relevant when assessing reasonable accommodation.

There has been somewhat of a back-and-forth dynamic to cases dealing with family status discrimination and accommodation when it comes to caring for family members. In 2012, the Ontario Human Rights Tribunal awarded a worker $25,000 in damages after he was terminated after several absences he took to care for his ailing mother. The worker’s role as his mother’s primary caregiver was a significant factor in the termination decision was therefore discriminatory based on family status, said the tribunal.

On the flip side, in 2015 the Federal Court of Appeal dismissed a federal worker’s claim of family status discrimination based on her employer’s refusal to grant her permission to work from home full-time following her maternity leave so that she could continue to breastfeed her baby. The appeal court upheld a board decision that breastfeeding was a personal choice, not a legal responsibility, and the employer’s decision didn’t interfere with the worker’s parenting in substantial way.

Just last year, the B.C. Human Rights Tribunal reiterated that self-accommodation efforts can be factored into the analysis. It found that a shift change interfered with a worker’s parental obligations by making it more difficult to pick up her child from daycare, but it wasn’t enough to be a significant interference because there were other daycare options closer to the workplace. The worker made a personal choice not to consider private daycares and only wanted to use larger, corporate daycares. This was within her rights but it wasn’t a substantial parent duty, said the tribunal.

And earlier this year, the Canadian Human Rights Tribunal awarded a worker more than half-a-million dollars in compensation for lost earnings and damages for pain and suffering caused by his employer’s failure to assign him work because his duties as a single parent to two children following the death of his wife didn’t fit with the employer’s schedule.

There’s been a lot going on with courts and tribunals tasked with assessing the elements of discrimination and accommodation for family status. Whether a jurisdiction provides job-protected legislative leave for care of family members or not, it’s not the end of the story.