Labour & Employment Newsletter

Accommodating Family Status in the Workplace

Summer, 2020

Human rights legislation protects employees from discrimination on a number of bases, including family status. Under Nova Scotia’s legislation, these protections can involve an employee’s relationship with their children and/or elderly parents. An employer’s failure to accommodate an employee with child or parental care obligations could violate this legislation. This newsletter provides information on the scope of an employer’s obligations to accommodate in the workplace based on family status, comments on the impact of the COVID-19 pandemic and set out some best practices for employers to avoid claims of discrimination on the basis of family status.

The Legal Framework

Human rights legislation protects individuals from discrimination on the basis of certain characteristics. Provincially-regulated employers are governed by the Nova Scotia Human Rights Act (the “Act”), while federally-regulated employers are governed by the Canadian Human Rights Act. Both the provincial and federal legislation prohibit discrimination in the workplace based on family status.

If a workplace is unionized, issues involving discrimination and/or the accommodation process can also be addressed through the grievance process.

The Scope of Family Status

In Nova Scotia, the Act defines “family status” as a parent-child relationship. The scope of protection available based on family status differs across the country so it is important to be sure that you are considering the relevant legislation in your jurisdiction.

What Guidelines are there on the Duty to Accommodate?

When an employee has a “protected characteristic” under human rights legislation, the employer has to accommodate the employee to the “point of undue hardship”. There is no precise definition of “undue hardship” but it is a very high standard. In determining whether an employer has met that standard, a human rights adjudicator would consider factors such as the size of the organization, the cost of accommodation, health and safety concerns, and the potential impact on employee morale. The onus is on the employer to show that any accommodation would result in undue hardship for it.

While the employer has the responsibility to consider and develop suitable accommodations, employees share in this responsibility. Employees seeking accommodation must cooperate with the process, share information with their employer about the nature of their family status and the limitations posed by the obligations, and be reasonable in their requests for accommodation.

In addition, the employee must accept a reasonable accommodation. The proposed accommodation does not need to be a perfect solution or the solution preferred by the employee. If the employee rejects a reasonable proposal, the employer has likely met its duty to accommodate.

In a unionized environment, unions also have an obligation and a right to participate in this process.

When does an employer have to accommodate an employee based on the employee’s family status?

To engage protection under the Act on the basis of family status, an employee would have to show three things (or, as it is formally called, to “establish a prima facie case”).

First, the employee’s situation has to fit within the definition of family status under the Act.

Next, the employee must experience a burden or disadvantage because of the parent/child relationship and the requirements of their job.

Finally, there has to be a “significant conflict” between caregiving responsibilities and the employee’s job duties. A significant conflict is more likely where the employee does not have control over their caregiving responsibilities. Factors that may impact this level of control include the age of a child, serious illness or special needs of a child (or potentially a parent requiring assistance), systemic barriers, or unilateral changes to the terms of employment by the employer. If a “significant conflict” exists on the basis of an employee’s family status, the accommodation process is engaged. However, the existence of a significant conflict alone does not automatically trigger the protections under the Act. The employee has to show that they have taken reasonable steps to resolve the conflict between their caregiving and workplace obligations.

A recent decision out of British Columbia is a good example of a situation that could give rise to a claim for accommodation on the basis of family status. In Ziegler v. Pacific Blue Cross (No.2) 2020 BCHRT 125, the employee, Ms. Ziegler, had a one-year-old child. The employee’s work schedule had ended at 4:30 p.m. each day. In 2017, the employer modified work schedules and every fourth week the employee would have to work until 5 p.m. The employee said that she could not work the changed schedule because she would no longer be able to pick up her child by 6 p.m. when the daycare closed. The employee’s parking spot was about a 10-minute walk from the office and the daycare was about a one-hour drive from there during rush hour.

The employee and her supervisor spoke about various options. The employee said that she felt it was unreasonable of her employer to expect her to change her child’s daycare. The employee did not look into any in-home daycares closer to work as she said that her child required the quality of a large “corporate” daycare. The employer refused to allow the employee to trade shifts, thereby requiring her to work until 5 p.m. when scheduled to do so.

The employee filed a complaint under the British Columbia human rights legislation, claiming that the change to her schedule discriminated against her on the basis of family status.

A British Columbia Human Rights Tribunal accepted that the employer had changed the terms and conditions of the employee’s employment but concluded that there was no discrimination as there was no serious interference with a substantial parental duty or obligation. The Tribunal was clear that the employee had not made sufficient efforts to arrange alternate child care, writing:

It is clear that Ms. Ziegler made insufficient efforts to ascertain whether she could arrange alternate daycare which would allow her to work the altered shifts which [the Employer] imposed…She eliminated, without any visits to ascertain their suitability for her child’s need, all home-based private daycare facilities between Burnaby and Langley from her search. She did this out of a pre-conceived idea that “corporate” daycares were the only daycares which could provide suitable care to meet her standards. No evidence was placed before me to support such a position other than Ms. Ziegler’s bald assertion to that effect.

Is the COVID-19 pandemic having an impact on accommodation based on family status? 

The COVID-19 pandemic has not led to any changes in the law on accommodation based on family status (at least not yet). However, it has increased the potential for requests for accommodation as employers change terms and conditions of employment to respond to the pandemic.

Also, employees could face a lack of child care when they go back to work. Accommodation for employees with family obligations could include:

  • Considering and, if feasible, implementing a flexible work schedule. This may include:
  • Modifying the start or end of working hours to accommodate care schedules; or
  • Providing time off for the employee to fulfill their caregiving obligations.
  • Providing opportunities to work from home to so that employees can provide the required care.

Employers should also bear in mind the potential obligations of employees to care for elderly parents or employees who have family members living at home who are immuno-compromised. Employees with immuno-compromised family members may have limitations on their ability to send their child to daycare or other concerns. Employers would have to assess each of these situations individually.

What are some best practices for employers? 

Through our work with employers, we see that certain steps help employers avoid claims of discrimination on any basis, including family status. In particular, we strongly encourage employers to do the following:

  • Assess each situation on its own facts.
  • Give as much notice as possible of any change in the workplace.
  • Listen to employees so that you truly understand their concerns.
  • Be flexible, if possible.
  • If the workplace is unionized, engage the union where appropriate.
  • Document all discussions with employee and/or union representative.
  • Make any accommodation subject to review on a regular basis. Employees’ needs will change over time so the accommodation could perhaps be ended or might need to be modified.

Conclusion

Requests for accommodation on the basis of family status were occurring before the COVID-19 pandemic and are likely to increase as a result of it. Employers have a duty to accommodate to the point of undue hardship. We trust that the information in this newsletter will allow employers to avoid claims of discrimination on the basis of family status.     

This newsletter is produced by Wickwire Holm to keep our clients and friends informed of developments in the law and emerging issues. It is intended for general information purposes only. In preparing and circulating this newsletter, Wickwire Holm is not providing legal or other professional advice. Readers are encouraged to consult their professional advisers before taking any action on the basis of information contained in this newsletter. If you have any questions about any issues raised within this newsletter or a related issue, please contact us at wh@wickwireholm.com or 902.429.4111.