Child and Elder Care and the Duty of an Employer to Accommodate

With the ever increasing costs of child care and after school care, many families with a working mother are faced with the annual dilemma after calculating the “net “benefit, having taken these expenses into account, of justifying her continued employment.  In addition, (particularly, for the single “mom”) after making the decision to work, they are then presented with ever increasing family duties and expectations, logistical issues and unreasonable expectations or demands by the employer, when their “family” obligations interfere or conflict with their employment duties.

By now most employers should be aware that both federal and provincial human rights legislation prohibits discrimination in the workplace on grounds of race, religion, sex and age. Many employers are however unaware that the legislation also prohibits discrimination based upon a person’s family status, which includes childcare obligations.

The issue also arises occasionally with respect to elder care. As our parents’ age and as there is a tendency for them to live longer, their personal requirements and medical needs increase and it often falls on their adult children to address these concerns. Most often these issues are unscheduled and take the employee suddenly away from the workplace, which may create conflict with the employer.

 

In a case on point, a single mother with 3 small children was hired as an office manager of a non-profit organization with hours of work that were attractive after taking into account the costs of child-care and after-school and the logistical issues. The job involved weekends off and hours of work that were flexible and easily accommodated both the drop-off and pick up times for the children. As is typical, particularly with infant children in a daycare environment, the “sick” child was required to be picked up on short notice or is prohibited from attending due to illness, which is understandable given the potential for spreading the illness among the daycare population. Many daycare facilities have very strict rules and policies in this regard.

In the circumstances of the present case, the employee on short notice was told to work weekends without being given a reasonable opportunity to arrange for adequate childcare and which was contrary to the original understanding in relation to her employment agreement. When she refused, she was terminated without just cause and given reasonable compensation lieu of notice. When pressed further in relation to the reason for the dismissal, the employee was advised in addition, “that she was taking too much time off to deal with “sick” children and as a result was failing to meet her work obligations.”

Because her termination was without just cause and she was given reasonable compensation of in lieu of notice, the employee felt she had no recourse.

In an article, Duncan Marsden, a partner in the law firm of Borden Ladner Gervais LLP made the following observations and comments on this legal issue as follows:

A landmark Federal Court of Appeal decision in Johnstone v Canada (Attorney General) held that workplaces are obliged to accommodate reasonable requests related to child care from their employees. This signaled a significant change in Canada’s employment law landscape.

“The court in Johnstone was careful to note that voluntary family activities such as family vacations and after school sports do not fall under the employer’s duty to accommodate because they are a result of parental choices, not obligations. So where is the line? What can employers legitimately expect and what can they refuse?

Generally speaking the courts have tended to side with the party acting more reasonably. For example, the Ontario Court of justice in Partridge v Botony Dental Corporation held that changes to an employee’s work schedule were discriminatory on the basis of family status. In that case, the court specifically that the employer had acted unreasonably and awarded Partridge $20,000 damages.”[1]

Cases involving family-status discrimination relating to child-care continue to evolve both at the court level and among human rights tribunals, with remedies including significant monetary awards, compensation for lost wages and benefits and in some cases, reinstatement where the dispute had resulted in termination of employment.[2]

 The Canadian Human Rights Commission offered guidance to both the employer and employee in dealing with this delicate balancing act.

Human rights law prohibits discrimination based on the ground of family status. The courts have determined that family status protections extend to a person’s family caregiving responsibilities. This means that when an employee must care for a family member, employers have a legal obligation to accommodate that employee. This is best achieved through flexible work arrangements that enable the employee to care for a family member and continue to do their work. To be accommodated, employees must show that they have exhausted other reasonable alternatives for care. Employees must also demonstrate that there is an obligation to provide care to a member of their family—a personal choice is not enough. For example, leaving work to attend a child’s soccer game would be considered a personal choice. Leaving work to bring an injured child to the hospital when no other caregiver is available would be considered an obligation. Accommodation arrangements do not have to be perfect. However, the employee, the employer, or their union and/or employee representatives must cooperate to find reasonable and practical solutions.” [3]

The Ontario Human Rights Commission has also weighed in on the subject by publishing its own guidelines under the heading “Policy and Guidelines on Discrimination because of Family Status”.  The following extract makes some interesting observations:

The ground of family status has been part of the Code since 1982, but has received relatively little analysis or attention, either in Ontario or in other Canadian jurisdictions. This is the first time the human rights issues related to family status have been explored in depth. It is to be expected that the understanding and public awareness of this ground of the Code will continue to develop over time.

The ground of family status, by its nature, raises complex and difficult issues related to the treatment of caregivers in our society. The Supreme Court of Canada has stated, “That those who bear children and benefit society as a whole thereby should not be economically or socially disadvantaged seems to bespeak the obvious”. The results of the Ontario Human Rights Commission’s (“the Commission”) research and consultation on family status indicate that, on the contrary, caregivers continue to face significant and on-going disadvantage because of their role.

There is a profound lack of awareness among employers, housing providers, service providers, community advocates and the general public regarding rights and responsibilities under the Code with respect to family status.

Negative attitudes and stereotypes persist about the character and capabilities of persons based on certain types of family status, such as, for example, single parents.”[4]

The Alberta Human Rights Commission has in similar fashion also identified family status as a protected right and has offered guidelines to both employees and employers, and in doing so has also adopted among other things a duty on the part of an employer to accommodate in situations involving both child and elder care.

Accommodation in employment most often involves the protected grounds of physical or mental disability. It may also involve the other protected grounds, including religious beliefs, gender (including pregnancy), family status, and marital status.


The Supreme Court of Canada has ruled that employers and service providers have a legal duty to take reasonable steps to accommodate individual needs to the point of undue hardship. To substantiate a claim of undue hardship, an employer or service provider must show that they would experience more than a minor inconvenience. In many cases, accommodation measures are simple and affordable and do not create undue hardship.”
[5]

 

Accommodation is a way to balance the diverse needs of the employee and the desire of the businesses and organizations to remain productive and profitable. This balancing act is not static but ever changing and the employer must be ever vigilante. It may cause a degree of inconvenience, disruption and expense to the employer. However, the law now requires accommodation of reasonable requests relating to childcare or elder care by the employee to the point of undue hardship. 

Whether or not there is a duty to accommodate in the workplace when it comes to child or elder care is always a question of fact depending on the circumstances of each individual case. Whether or not the proposed accommodation request would create an undue hardship is also a question of fact depending on the unique employer/employee relation and the nature of the industry. For example, a suggested accommodation may be reasonable in the workplace environment where there are 25 employees but may not be reasonable and create an undue hardship where there are only 3 employees.

The governing principle is one of reasonableness and practicality, which applies both as much to the employee as it does the employer.

With the advent of family status discrimination cases and with more and more young mothers (and not necessarily single moms) entering the workforce or wishing to continue their employment after parental leave, and with increasing parental demands, there is a strong likelihood that employers will be faced with creative and new family-status accommodation requests. There is a real need on the part of the employer (or board of directors) to firstly, become informed and secondly, to establish policies, procedures and protocols to deal with these types of requests. Consistency in approach seems logical in dealing with family-status accommodation requests.

And just because a family-status accommodation request which has been made may not be strictly speaking required by law, the reasonable and prudent employer may nonetheless want to accommodate the request as matter of goodwill, particularly if is a one-off situation. The law sets the bar but that’s not necessarily the limit to the accommodation. By having well thought out policies and procedures in place and by having open and candid dialogue with the employees regarding the matter, there is less likelihood that a workplace confrontation will occur and the work environment will continue to be a healthy, respectful and productive one.

Finally, to the young single mom whose employment has been terminated, (without getting into issues relating whether or not adequate notice was given concerning the perceived work related deficiency), she might well be advised to seek legal advice as to whether or not there has been “discrimination” based upon family status and therefore, a human rights violation and seek redress through the applicable federal or provincial human rights legislation.

William J Anhorn QC ICD.d

December 15th 2017


[1] Marsden, Duncan-Financial Post “If your child care obligations are not accommodated you might have a case for discrimination” http://business.financialpost.com/executive/management-hr/if-your-child-care-obligations-are-not-accommodated-you-might-have-a-case-for-claiming-discrimination

[2] see,  Seeley v Canadian National Railway-Federal Court of Appeal

[3] Canadian Human Rights Commission “A Guide to Balancing Work and Caregiving Obligations” go to http://www.chrc-ccdp.gc.ca

[4] The Ontario Human Rights Commission “Policy and Guidelines on Discrimination Because of Family Status” http://www.ohrc.on.ca/en/policy-and-guidelines-discrimination-because-family-status - fn2

[5] The Alberta Human Rights Commission “ The Duty to Accommodate” https://www.albertahumanrights.ab.ca/publications/bulletins_sheets_booklets/bulletins/Pages/duty_to_accommodate.aspx