For many of us who are parents, September feels like the real New Year. Workplace issues can arise with respect to shifting childcare obligations, as kids transition from summer schedules to school schedules. Employers may be met with requests to accommodate worker childcare obligations or requests for time off and should be prepared with respect to how to handle these issues both practically and legally.
I’ve blogged about family status accommodation in the past – see my posts here and here. As people delay having children until later in life and once they have more established careers, employers are more likely to be met with requests for flexibility, accommodation and time off from key personnel or managers. Our aging population also means that the demands on many of us, to look after both parents and children, are increasing.
How should an employer respond if an employee suddenly asserts that their normal work hours discriminate against them on the basis as their status as a parent? What if an employee suddenly requests previously unscheduled time off, asserting parental obligations? Here are some of the legal requirements.
Requests for Leaves and Time Off
Under the Employment Standards Act employers who have more than 50 employees are required to provide employees with personal emergency leave of up to 10 unpaid days for illness, injury, medical emergency or urgent matter relating to children and other dependant family members. The expected changes to the Employment Standards Act under Bill 148 are expected to make this leave available to all employees, not just those in workplaces of 50 or more. Additionally, the first 2 days of the leave will be paid days. Bill 148 would also extend the length of unpaid family medical leaves, which would be increased from the current eight weeks in a 26-week period, to 27 weeks in 52 week period. For more information on these changes see my post here.
Discriminating Against Parents
Family status is a protected ground under the Ontario Human Rights Code. Family status is defined as “the status of being in a parent and child relationship.” Employees may, for example, assert that their work schedule or location discriminates against them on the basis of family status where they encounter difficulty meeting their family obligations because of the requirements of their job.
As with other protected grounds employers have a duty to accommodate, up to the point of undue hardship. What exactly this means in the context of childcare has been a moving target in Canada and as with other forms of accommodation, accommodation of family status will look different, depending on the context.
The Legal Test
The current legal test is set out in the Misetich v Value Villages Stores case. In short, the adjudicator required the employee to establish that he or she is a member of a group protected under the human rights code, has experienced adverse treatment, and that the ground of discrimination was a factor in the adverse treatment (paragraph 43). The onus then shifts to the employer to establish that the employee cannot be accommodated to the point of undue hardship (paragraph 57).
The case confirmed that the family status test is similar to the discrimination tests set out for other protected grounds. For further details, see my past blog post on this case here.
Practical Tips for Accommodating Family Status
- Once an employer becomes aware of their employees’ need for accommodation they have an obligation to assist the employee in finding a solution;
- The employee must actively investigate solutions to their problem, beyond simply changing their work schedule, for example. While it may be an employee’s preference that they be able to pick up their children from school, this is not necessarily something that an employer must accommodate. While substantial childcare obligations must be accommodated, personal preference does not need to be;
- If a change in the employee’s position or work hours will not cause undue hardship to the employer, it may be an appropriate solution. However, consider how other employees may be impacted; and
- Always document conversations with an employee requesting accommodation. Include accommodations that were considered and if they were not adopted make sure the notes set out the reasons why.
Family status accommodation remains a relatively new area of discrimination under the Human Rights Code, and while employers continue to struggle with where is the legal, practical and morale line to draw, the one certainty is that employer have no choice but to engage in meaningful conversation, to determine whether the accommodation is required. Blanket denials for business needs are no longer an option.