In recent years, courts, tribunals and arbitrators have considered the obligations of employers when dealing with family-related needs, including an employee's childcare obligations. As all employees have family responsibilities and many have childcare responsibilities, this topic continues to be difficult for employers and human resource professionals to navigate. Balancing the need to retain talent and support employees while ensuring a productive workplace is a challenge facing all employers.
On February 11, 2013, we described the Federal Court of Canada's (FC's) decision in Canada (Attorney General) v. Johnstone (Johnstone), wherein the FC took a broad view of the duty to accommodate family status and childcare obligations in the workplace. That decision was subsequently appealed by the Attorney General of Canada and on May 2, 2014, the Federal Court of Appeal (FCA) rendered its decision, along with its decision of an appeal in a similar family status case Canadian National Railway v. Seeley (Seeley).
Both the Johnstone and Seeley cases involved mothers of young children who requested relief from a workplace schedule or assignment that would have left their children without adequate childcare.
Ms. Johnstone and her husband both worked as full-time employees for the Canadian Border Services Agency (CBSA) and were required to work rotating shift schedules with no predictable pattern. After having children, Ms. Johnstone requested a fixed work schedule to accommodate her childcare obligations. Although the CBSA had accommodated other full-time employees with medical issues and religious observances by providing fixed work schedules, it declined to do so for Ms. Johnstone and, instead, offered her part-time work, which would have negatively affected her benefits, pension and promotion opportunities.
Ms. Seeley and her husband were also employed by the same employer, in this case the Canadian National Railway (CN). In her case, Ms. Seeley requested an exemption when she was asked to report to Vancouver to cover a labour shortage; she claimed that there would be no childcare arrangements available during her absence in the small town where they lived. CN denied Ms. Seeley's request and eventually terminated her employment because of her failure to report to work in Vancouver.
Both Ms. Seeley and Ms. Johnstone filed human rights complaints, claiming that their respective employers had engaged in discrimination based on family status contrary to the Canadian Human Rights Act. In both cases, the Canadian Human Rights Tribunal (CHRT) found that the employees had suffered discrimination on the ground of family status because of their employers' failure to accommodate their respective childcare situations. Both CN and CBSA sought judicial review of the CHRT decisions at the FC. In the FC's Johnstone decision, released on January 31, 2013, Justice Mandamin upheld the CHRT's finding that Ms. Johnstone had established a prima facie case of discrimination but modified the remedies that had been awarded to her, sending that issue back to the CHRT for consideration. In the FC's Seeley decision, released on February 1, 2013, Justice Mandamin dismissed the judicial review application, upholding the CHRT's decision in its entirety. Unfortunately for employers, in neither decision did the FC enunciate a clear test for the duty to accommodate family status in the context of childcare requests, leaving employers to muddle through such requests with competing and divergent directions from the FC and various provincial courts and tribunals.
The Federal Court of Appeal Decisions
Both CN and CBSA ultimately appealed the FC decisions to the FCA. In both the Johnstone and Seeley decisions, the FCA again found in favour of the employees, upholding the underlying CHRT decisions and confirming the duty to accommodate family status (including a parent's childcare obligations) in the workplace.
While the FCA emphasized that human rights law protects an employee's childcare needs, not preferences, it also expressed its preference for a broader approach to family status discrimination. To that end, the FCA established a four-part test that a federally regulated employee must meet to make a case of family status discrimination and to trigger an employer's duty to accommodate. Specifically, the employee must show the following:
1. A parental obligation:
The employee must be the parent of the child or otherwise responsible for the child's care and supervision, so that a failure to meet the child's needs would engage that individual's legal responsibility vis-à-vis the child.
2. A legal obligation:
The employee's childcare obligation must engage his or her legal responsibilities to the child, rather than being merely a personal family choice. For example, interference with a parent's ability to attend a child's sports game or parent/teacher meeting would not likely constitute discrimination, but requiring a parent to leave a young child alone without adult supervision would.
3. Reasonable efforts:
The employee must show that he or she has made reasonable efforts to meet and balance childcare and workplace obligations through reasonable alternative solutions, including childcare providers, family and other possible sources of assistance, and must be able to demonstrate that no such solution was readily accessible – that is, as a result of having unsuccessfully sought out reasonable alternative childcare arrangements, the employee remains unable to fulfill his or her parental obligations. The Court noted that a complainant will be required to show that neither the complainant nor his or her spouse can meet their childcare obligations while continuing to work, and that an available childcare service or alternative arrangement is not reasonably accessible – that is, they are facing a bona fidechildcare problem.
This will be a highly fact-specific analysis and will vary from case to case. For example, Ms. Johnstone investigated numerous regulated and unregulated childcare providers near her home and her work and inquired with family members, but no one could provide childcare during Ms. Johnstone's unpredictable work schedule. It is important to note, however, that an employer will have to fully communicate workplace requirements so that an employee can properly investigate alternative solutions. In Seeley, the Court found that CN did not provide sufficient information about the work assignment in Vancouver to allow Ms. Seeley to assess whether and how her childcare needs could be met, including the work assignment's estimated duration and location, her shifts and housing arrangements.
4. Real interference:
The workplace rule in question must be shown to interfere with the employee's fulfillment of his or her childcare obligations in a manner that is more than trivial or insubstantial. While the FCA did not elaborate on this fourth and final factor, we can assume, for example, that being five minutes late to pick up a child from daycare once a week would not trigger an employer's duty to accommodate.
What Should Employers Do Now?
As discussed in our 2013 article, divergent views continue to be held within the provincial and federal jurisprudence regarding the applicable threshold test for establishing a case of discrimination on the ground of family status. As the Supreme Court of Canada has not yet provided a detailed analysis of the definition and scope of family status or the test to be applied across all jurisdictions, employers are still left with multiple standards to consider.
Although employers should ultimately seek guidance from the jurisprudence of the jurisdiction in which they operate, administrative tribunals, courts and arbitrators regard human rights jurisprudence from other provincial and federal authorities as persuasive, particularly when they originate from an appellate court such as the FCA; therefore, the FCA's decisions in Johnstone and Seeley should be considered by employers in their accommodation processes.
Despite the existence of conflicting approaches, the case law is largely unanimous that "family status" includes not only the status of being a parent, but also the parental obligations that flow from this status, such as child rearing and childcare. There are also natural analogies to be drawn to other dependent relationships that may exist in family structures, including elder care.
While case law continues to develop and as we wait to see whether the Attorney General will appeal either the Johnstone or Seeley decisions to the Supreme Court of Canada (which must be done within 60 days), accommodation on the basis of family status must be attempted in good faith by all parties. The facts in both Johnstone and Seeley indicate that the employers fell short in searching for reasonable solutions for their respective employees. An employer's duty to accommodate requires a fulsome examination of the unique facts and circumstances of each case. Employers would be well advised to be open to hearing employees' issues and discussing flexible options when work requirements have a serious, negative impact on an employee's family obligations. Similarly, accommodation continues to be a "two-way street": employees, too, have an obligation to pursue reasonable solutions to a conflict.
We recommend that employers consider the following best practices when managing an accommodation request related to family status:
- Identify the issues: This will require collecting as much information as possible regarding the circumstances that resulted in the request for accommodation.
- Gather the right information: An employer should determine exactly what information is required and how that information will assist in the accommodation process. For example, in cases involving family status and childcare, an employer may require information about the specific needs of a child, the childcare obligations of the parent, the steps that the employee has taken to seek out alternative arrangements, the reasons why the alternative arrangements are not feasible from the employee's perspective, the options considered by the employee to be viable and the length of time the employee will need accommodation.
- Don't jump to conclusions or rush to a solution: While it may be true that the job may not be done with certain restrictions or that other employees will be upset if an employee gets special treatment, these conclusions cannot be established as true until all the relevant information has been assessed, and may not be a legitimate basis on which to deny a request for accommodation.
- Engage the "two-way street": Seek out and require the participation of the employee in the accommodation process.
- Be flexible: Consider all of the options and document the corresponding assessments, including modified work duties, rules or hours, or possibly other suitable positions.
- Document, document, document: Ensure that you keep good records of all information provided by the employee, as well as any attempts to obtain further information.
- Manage the accommodation from start to finish: If possible, offer reasonable accommodation and monitor the employee to assess the anticipated length of time for which accommodation is required and whether the accommodation measures selected are appropriate.
- Follow up: Review the accommodation and assess whether (a) the employee's circumstances have changed; (b) the anticipated duration of the accommodation is still realistic; and (c) the accommodation measures need modification.
It is important for employers and human resource professionals to keep in mind that, in many cases, the accommodation measures adopted – which might include leaves, alternative work or pay arrangements and flexible hours – may be merely temporary and often go a long way to developing and maintaining goodwill within a workforce. These intangible factors, in addition to the legal concepts set out above and the operational needs of the organization, should be considered when implementing workplace rules and requirements as well as when addressing requests for accommodation.
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