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Do employers often receive multiple employee requests for accommodation for childcare/caregiving responsibilities?

Do employers often receive multiple employee requests for accommodation for childcare/caregiving responsibilities?

Cristina Lavecchia, Editor, HRinfodesk, published by First Reference, August 2017

Arecent HRinfodesk poll asked subscribers whether they receive multiple employee requests for accommodation for childcare or caregiving responsibilities. The results indicate that 34 percent of respondents said “No,” 31 percent said “from time to time,” and 18 percent replied “yes.”

For those employers who answered “yes” and “from time to time,” it is even more important that you are aware of human rights laws and your responsibilities as an employer when it comes to workplace accommodation of caregiver or childcare responsibilities.

First, it is important to know that “family status” is a prohibited ground of discrimination in human rights law across Canada, except Quebec who uses the term “civil status” which has been understood to include family status. It is also significant to know that the definition of family status varies from jurisdiction to jurisdiction. For instance, jurisdictions such as Ontario, Newfoundland and Labrador, Nova Scotia, Prince Edward Island and Saskatchewan define “family status” as the status of being in a parent and child relationship.

As affirmed by the Ontario Human Rights Commission (OHRC), a parent and child relationship can also mean a parent and child “type” of relationship which may not be based on blood or adoption ties, but based on care, responsibility and commitment. The OHRC provides the following examples: parents caring for children (also by adoption, fostering and step parenting), people caring for aging parents or relatives with disabilities, as well as families headed by lesbian, gay, bisexual or transgendered persons.

As with other prohibited grounds of discrimination, employers have a legal duty to accommodate their employees based on their “family status.” The goal is to allow employees equal benefit from and participation in the workplace up to the point of undue hardship. Employers have a duty to think about whether workplace culture, structures, policies and procedures can be adjusted to accommodate the needs of family caregivers. This can include flexible scheduling or alternative work arrangements (e.g., remote access or work-from-home arrangements). It is also important to note that although the “best” solution may result in undue hardship, it does not preclude an employer from taking the next best steps, until more ideal solutions can be put into place.

The Johnstone test

If you attended First Reference and Stringer LLP's annual employment law conference last year, the matter of Johnstone v Canada (Border Services) was discussed. This matter created a test for family status discrimination in the context of child care (the Johnstone test). The court held that for a claimant to demonstrate a prima facie case of discrimination in a situation involving childcare obligations, they must show the existence of the following factors:

  • Child is under the claimant's care and supervision;
     
  • Childcare obligation at issue engages the claimant's legal responsibility for that child vs. personal choice;
     
  • Claimant has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions; and
     
  • The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

If the employee can demonstrate a prima facie case of discrimination (i.e., employer discriminated against them because of family status), the onus is then on the employer to demonstrate that the policy or practice is a bona fide occupational requirement and that the accommodation would amount to undue hardship.

However, the Human Rights Tribunal of Ontario recently disapproved of the existence of distinct “tests” for establishing family status discrimination. The Tribunal's reasons included:

  • There is no principled basis for developing a different test for discrimination depending on the prohibited ground of discrimination alleged;
     
  • Different tests for family status discrimination have resulted in inconsistency and uncertainty in the law. Some of the tests are more stringent than others, resulting in different outcomes depending on the test that is followed;
     
  • By developing different tests, the test for family status discrimination has been set higher than for other kinds of discrimination. For example, in Johnstone, the Court of Appeal held the childcare obligation at issue must engage the individual's legal responsibility for the child, as opposed to a personal choice. The Tribunal reasoned that “to limit human rights protection to legal responsibilities imposes an unduly onerous burden on applicants”;
     
  • The test of legal responsibility is difficult to apply in the context of elder care. An adult child's legal responsibility to provide care for his or her elderly parent is not as clear as a parent's legal responsibility to care for his or her minor child; and
     
  • Some of the cases have conflated the test for discrimination and accommodation. The Tribunal did not agree that to prove discrimination, an applicant must establish that they could not self-accommodate.

Rather, the Tribunal provided the following for establishing family status discrimination in the context of employment:

  • The employee will have to do more than simply establish a negative impact on a family need. The negative impact must result in a real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee's work. The Tribunal provided the following example: a workplace rule may be discriminatory if it puts the employee in the position of having to choose between working and caregiving or if it negatively impacts the parent/child relationship and the responsibilities that flow from that relationship in a significant way.
     
  • Assessing the impact of the impugned rule is done contextually and may include consideration of the other supports available to the employee. These supports are relevant to assessing both the family related need and the impact of the impugned rule of that need. The Tribunal provided the following example: if the employee is a single parent, both the family related need and the impact of the impugned rule on the family related need may be greater. The Tribunal noted that this is very different than considering whether an employee can “self-accommodate” because the self-accommodation approach inflicts the onus on the applicant to find a solution to the family/work conflict.
     
  • Once the employee proves discrimination, the onus shifts to the employer to establish that the employee cannot be accommodated to the point of undue hardship. It is then that one considers whether the employee cooperated in the accommodation process; including providing the employer with sufficient information relating to the family related needs and working with the employer in identifying possible solutions to resolve the family/work conflict. The Tribunal noted that accommodation is a joint process and it is not something that falls solely to the employee.

Takeaways and best practices

To date, it appears unclear what the future holds for the infamous Johnstone test, or the analysis and considerations provided by the Tribunal in the above case, when it comes to establishing family status discrimination.

Regardless of this uncertainty, employers should continue to adopt best practices when handling requests for family status accommodation:

  • Treat employee requests for family status accommodation seriously.
     
  • Inquire about the employee's specific circumstances.
     
  • Determine what barriers might affect the person who requests accommodation. Explore options for removing those barriers and accommodate by using reasonable efforts.
     
  • Refrain from creating workplace policies, procedures or work events that operate to exclude or disadvantage persons protected under a human rights ground(s), including family status.
     
  • Permit accommodation requests in a timely manner (to the point of undue hardship).
     
  • Document the accommodation request and action taken. This will assist an employer demonstrate to the court (if necessary) that they made every effort possible to accept the employee's request, they investigated as to whether they could accommodate the employee up to the point of undue hardship, and whether the employee actively participated and facilitated the process, etc.
     
  • Uphold confidentiality.

That said, employees also have duties and responsibilities when it comes to workplace accommodation. Some employee duties and responsibilities include, among others:

  • Request the accommodation and provide an explanation of why it is required, so that needs are known.
     
  • Take part in discussions on possible accommodation solutions.
     
  • Meet agreed-upon work performance and job standards once accommodation is provided.
     
  • Work with the employer on a continuing basis to manage the accommodation process.

Human rights matters involve sensitive and complex issues and therefore should not be taken lightly by an employer. If at any point you are having second thoughts on what should be done in your situation or are still unclear on how to best approach your situation, it is advisable that you seek the advice of a lawyer.

In the meantime, consider consulting The Human Resources Advisor™, which provides comprehensive discussions on the topic of accommodation based on family status, as well as additional tips to help employers better understand their duties under the human rights duty to accommodate to the point of undue hardship. In addition, the legally reviewed A-Z resource offers clear, current and comprehensive HR and payroll compliance and best practice coverage, hundreds of crucial government and HR forms and much more. Not a subscriber? Request your free 30-day trial here!



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