After a recent Federal Court of Appeal ruling, employers are now faced with the responsibility of accommodating employee requests relating to childcare – providing it does not cause the employer undue hardship. This is the first time a ruling seems to clarify what employers’ obligations are when it comes to accommodation based on family status under human rights legislation.
It all started with a human rights compliant filed by an employee of the Pearson International Airport in Toronto. Her employer denied her request to switch from rotating shifts to fixed shifts so that she could secure childcare for her two children (Source: National Post). In the end, the Canadian Human Rights Tribunal sided with the employee and ordered her employer to pay lost wages and provide additional compensation, finding that they could have accommodated her request without any undue hardship.
In his ruling, Justice Robert M. Mainville stated that:
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.”
He also concluded that these accommodations must be made only if there is a significant issue with childcare and a reasonable solution is available (Source: Toronto Sun).
What are your obligations?
Under provincial and federal human rights legislation, employees are protected from discrimination based on “family status”. Although this legislation has been in place for many years, it has always been a bit of a gray area for employers. In this ruling, the Court expressed its preference for a broader approach to family status discrimination while also emphasizing that human rights laws only protect an employees’ childcare needs not preferences. (Source: Mondaq).
According to the BCEA, the Court established a four-part test which an employee must meet to make a case of family status discrimination and trigger an employer’s duty to accommodate:
- Parental obligation: Employee is the parent of the child or responsible for the child’s care and supervision
- Legal obligation: Employee’s child care obligation engages his/her legal responsibilities to the child rather than a personal family choice (i.e. attending a child’s sporting event or field trip vs. not providing adult supervision)
- Reasonable efforts: Employee must show that he/she has made reasonable efforts to meet child care and workplace obligations through reasonable alternative solutions and that no solution as readily accessible.
- Real interference: The workplace rule in question interferes with the childcare obligations in a manner that is more than trivial or insubstantial.
According to this new ruling, it appears that if an employee meets all 4 of these criteria, and accommodation does not cause the employer undue hardship, the employer would then be under obligation to accommodate the childcare needs of an employee.
Implications for employers
Anna Aceto-Guerin explains:
Accommodation under any of the protected grounds is never a quick or easy answer. Every individual situation will be unique and, as an employer, you need to be able to show that you have assisted or supported the employee in any way you can. Your approach should be fair and equitable, providing the employee with reasonable time and notice to find alternative childcare options. The more documentation or evidence you can bring forward as an organization to prove you have fulfilled your due diligence, the better off you will be in a court situation.
What once was potentially considered a “nice to have” for employees has now become an employer obligation. Is the scope of an employer’s duty to accommodate becoming too much to handle? We’d like to hear from you! Please leave your comments in the section below.
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