Accommodation of childcare
In recent times, we have seen the ongoing expansion of protections provided by human rights legislation. This has included the addition of new protected grounds, such as sexual identity, as well as the expansion of the definition of existing grounds. With respect to the latter, we have seen disability defined to include both casual and medicinal use of marijuana, miscarriage as a possible disability, and family status defined to include childcare and elder care obligations. The bottom line is that the duty of employers to accommodate continues to expand, and we cannot stress enough that employers should never reject a request for accommodation out of hand.
The latest development comes out of the Northwest Territories, and the Human Rights Adjudication Panel’s decision in A.B. and the City of Yellowknife and Northwest Territories Human Rights Commission. In that case, a breach of the human rights legislation was found where the employer refused to allow the employee to have the summer off in order to look after her autistic child.
A.B. was employed by the City of Yellowknife as a Cashier/Receptionist, on a part-time basis, between 2006 and 2010. She then applied for a full-time job as a Bookings Clerk and, while applying for this position, mentioned her specific childcare requirements. The evidence was that the City acknowledged these requirements and indicated that accommodation would be provided. No specific plan of accommodation was put in place.
The evidence further demonstrated that after she became a Bookings Clerk in 2010, A.B. was allowed to take the summer off through a combination of her annual vacation and some time off without pay, and also had the winter break off that year. However, when she asked for the summer of 2012 off, issues arose. Specifically, the City advised her that rather than having the summer off, she would be allowed to work evenings and weekends. When A.B. indicated that this would not be feasible, the City advised that she would be required to provide medical documentation to justify her requirements. Complying with this requirement, A.B. provided documentation from two different physicians who described her child’s disability and special needs. The City rejected this, partially because it did not come from A.B.’s own doctor and partially because it did not set out her medical needs. Unfortunately, the employee was then left with no choice but to resign after using all of her vacation time.
The evidence was clear that A.B.’s child had a significant disability and required an extensive amount of care and accommodation. Unfortunately, while support was available during the school year, it was not readily available during the summer in this small community.
The adjudicator referenced the groundbreaking case of Johnstone v. Canada (Border Services Agency), which established that childcare accommodations could be protected under the ground of family status. In that case, a four factor test was set out in order to assess whether there was a prima facie case of discrimination:
- the child is under the care and supervision of the employee;
- the childcare obligation engages the employee’s legal responsibility for that child, as opposed to a personal choice;
- the employee has made reasonable efforts to meet those childcare obligations through alternative solutions and no such alternative solution is reasonably accessible; and
- the workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
The adjudicator quickly dispensed with the first factor, finding that it was clearly met. With respect to the second issue, the City took the position that the need for childcare and the refusal to work evenings and weekends was based more upon a personal choice than an actual need. The adjudicator was critical of the employer in this regard, finding that it did not recognize the requirements of the child and the need for accommodation.
Similarly, the adjudicator found that while the City had proposed an alternative, the notion of having A.B. work evenings and weekends was not feasible and therefore she was right to reject it. Lastly, the adjudicator had no difficulty finding that the fourth factor had been met as it was clear that the prospect of working evenings and weekends would interfere with A.B.’s childcare obligations and, again, that the City failed to properly take those obligations into account.
Since there was no bona fide occupational requirement that would have led to a finding that A.B. should be required to work evenings and weekends, there was no reason to deny the complaint. The arbitrator took particular note of the fact that there was no reason why the City could not have either trained an existing cashier to take on the role of Bookings Clerk temporarily, or hired a summer student to do so. Ultimately, the arbitrator found there was clear evidence that the City did not make reasonable efforts to accommodate A.B.
This case is another example of the expanding protection provided by human rights legislation. It is also an example of how not to respond to a request for accommodation. As our firm advises its clients, and also conveys in presentations and the media, employers should never reject a request for accommodation out of hand. Even in situations where the request seems to be unreasonable, employers should proceed cautiously and document their efforts to substantiate the need for accommodation and, if it exists, their efforts to find appropriate accommodation. It is only by doing so that they will be in a position to defend allegations that they did not meet their obligation to accommodate, and therefore avoid a finding that they were in breach of human rights legislation. The bottom line is that human rights protection is only going to continue to expand, and employers must be mindful of this and ensure that they take their obligations seriously. At the same time, individuals should be aware of their rights and ensure that they do not inadvertently allow them to the trampled upon.