Can you be terminated for missing work due to your caregiving responsibilities?

We receive calls from parents who have been terminated, or whose continued employment has been threatened, due to their caregiving obligations to their children or parents. Under the Ontario Human Rights Code, every person has a right to equal treatment with respect to employment without discrimination on the basis of multiple grounds, including ‘family status’. Family status, which is defined as “being in a parent and child relationship”, arises in employment most often in the context of accommodating people with caregiving responsibilities.  To read other blogs in which we have written about “family status” and accommodation on this basis, click here.

In a recent case, the Human Rights Tribunal of Ontario had the opportunity of deciding just how far this protection to caregivers extends.

Miraka v A.C.D. Wholesale Meats Ltd.

In this case, Mr. Miraka, who had worked for Wholesale Meats Ltd. for one month, was dismissed for being absent from work for three consecutive days. On June 11, 2012, Mr. Miraka obtained permission from a manager to stay home on the following day to care for his children because his wife was sick. On June 13, 2012, Mr. Miraka called in after his shift had begun to say that his wife was still ill and he would not be coming in. The following day, Mr. Miraka showed up for work, but asked to leave early because of a sharp pain in his back (which was later found to be a hernia). Mr. Miraka was terminated shortly afterwards.

The employer argued that Mr. Miraka did not establish that he made reasonable efforts to make alternate arrangements for his child care needs on the two days in question. Therefore, Mr. Miraka was not entitled to receive protection under the Code. The Tribunal disagreed: the obligation to make alternate arrangements for child care applies in situations where an employee is seeking long-term accommodation. The obligation does not apply where there is only an “infrequent, sporadic or unexpected need to miss work” to take care of one’s children. Although an employee may be reasonably expected to seek assistance from close family members, the Tribunal found that Mr. Miraka did not have that option. It would have been an unreasonable expectation for Mr. Miraka to have a babysitter “on call” or to attempt to hire a stranger on short notice from Craigslist or Kijiji.

Conclusion

When your caregiving responsibilities conflict with your work obligations, your protections under the Code may be triggered. Whether you are entitled to these protections, or whether you are expected to make alternative arrangements, depends on a number of factors including the duration of the conflict, whether it is temporary or permanent, and your personal circumstances. When considering asking for accommodation at your workplace for caregiving responsibilities, it is important to consult a human rights lawyer to advise on the employer’s obligations to its employees and the expectations your employer may place on you.

If you have any questions about your legal rights in the workplace or home, one of our lawyers would be happy to meet with you. Please call 647-204-8107 or email [email protected].