When a single mother asks for time off to care for her sick child, what are the legal “family status” issues involved?
Discriminating on the basis of family status has been illegal in most Canadian jurisdictions for many years. It is only recently that the courts and adjudicators have been called upon to decide the scope of an employer’s obligation to accommodate on the basis of family status.
In these cases, an employee generally asks to miss work (or change his/her hours) to care for a child or a parent and the employer refuses.
In reality, most work obligations interfere with parental obligations and employees make arrangements for their charges, such as daycare, temporary health care workers or spousal support. The issue in these cases is deciding on when a parental obligation trumps a work obligation. There needs to be some mechanism to deal with a request for flexibility in working arrangements to allow employees to take care of their family. To this end, a two-tier test has been developed.
The two-part legal test
1. Generally, an employer has no duty to accommodate an employee unless the employee can prove a prima facie case of discrimination. Most family status cases have focused on whether the employee has proven a prima facie case.
2. Once an employee has proven discrimination then the employer has a duty to accommodate unless it causes undue hardship.
Kevin MacNeill presented a very interesting paper at an Ontario Bar Association seminar on June 7, 2013 identifying three different interpretations of family status discrimination; the narrow, broad and middle approach. It is up to the Supreme Court of Canada to decide which of these approaches to uphold.
The narrow approach
The “Narrow (British Columbia) Approach” deals with a change in a term of employment (i.e. a change in an employee’s hours of work) which results in a serious interference with a substantial parental or other family duty or obligation. The B.C. Court of Appeal stated: “… in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case (of discrimination)”. Under this approach, it is difficult for an employee to prove a human rights violation if an employer has refused to accommodate him/her.
The broad approach
Under the “Broad (Federal) Approach” the federal court has rejected the B.C. approach. Canadian Human Rights Tribunal decisions have also specifically rejected the B.C approach and ruled that it is not incumbent upon the employee to prove serious interference with a substantial parental or other family obligation.
The middle approach
In the Power Stream case, an arbitrator rejected both the B.C. and Federal approaches and adopted the “Middle Approach”. Arbitrator Jesin set out five factors that should be considered when deciding whether an employee has made out a prima facie case of discrimination including (i) what prompted the adverse effect on the employee; a change in a term of employment, or a change in the employee’s personal circumstances? and (ii) what efforts has the employee made to self-accommodate?
The duty to accommodate
Once the employee proves discrimination, the employer must accommodate the employee’s request unless it causes undue hardship. It is essential that the employer satisfy both the procedural and substantial aspects of the duty to accommodate.
What should an employer do?
At the moment, an employer’s accommodation obligations responding to child care and elder requests depends on which of the three above-noted approaches apply to a particular workplace. In British Columbia, the obligations are the least onerous and federally regulated employers appear to have the most onerous obligations.
Regardless of the approach, employers should carefully review the factual background surrounding each employee’s accommodation request. Thereafter the employer and employee should collaboratively explore possible solutions together.
Given the aging population and our burdened health care system, I fully expect family status accommodation requests to increase significantly in the future. I also anticipate that most family status requests will be addressed quickly as a single approach is identified. I also anticipate that employers will be able to accommodate with nominal (if any) out of pocket costs in most cases.