Family status accommodation in the workplace continues to
undergo critical judicial scrutiny. A recent Alberta case that
could have implications for employers has taken yet another
direction in considering what obligations should be placed on
employers in connection with requests for family status
Under the stricter BC approach, which requires that the employee
demonstrate a serious interference with a substantial family
obligation, it is a challenge for employees to claim a right to be
accommodated. While there is a growing number of court cases
outside BC that have adopted a lower test for triggering the duty
to accommodate, some decisions have required that employees
demonstrate that they considered reasonable efforts to
self-accommodate their childcare obligations before they can
trigger an obligation on the employer to reasonably accommodate
their obligations. Under this approach, it was appropriate for
employers to ask employees who are seeking accommodation about
other options for childcare before exploring whether changes at
work should be considered.
The Alberta Court of Queen's Bench has now waded in with a
decision that could have consequences on the employer's duty to
accommodate: SMS Equipment Inc v Communications, Energy and
Paperworkers Union, Local 707,2015 ABQB
This decision involved a mother of two who worked on rotating
night and day shifts. She asked to work on days exclusively because
arranging for childcare was too expensive and she did not get
sufficient sleep if she looked after the children herself. The
employee had not asked the children's fathers for assistance
and did not apply for child support or childcare subsidies. Her
request was rejected by her employer. The union challenged this
decision and an arbitrator upheld the union grievance.
The employer appealed arguing that the arbitrator had failed to
properly consider the employee's lack of self-accommodation
efforts. The Alberta Court heavily criticized the requirement that
the employee demonstrate that she had considered self-accommodation
steps prior to requesting accommodation, finding that it was
contrary to the purposes of human rights law as it subjected
employees seeking family status accommodation to personal
examinations of their relationships and financial circumstances.
The Court stated that such "one-sided and intrusive
inquiries" could deter employees from pursuing discrimination
claims. The employer's appeal was dismissed.
The reasons indicate that it was not appropriate for the
employer to subject the employee to an examination of whether she
had explored self-accommodation through alternative childcare
options before considering her requested accommodation. This
ruling, if followed, will require that employers take care in how
they approach family status accommodation requests. Under the
approach the Court adopted, employees will not have to demonstrate
that there were no other reasonable options available to satisfy
those obligations before requesting accommodation.
A discussion with an employee about other options he or she may
have may still be reasonable in the context of a
"multi-party" search for accommodation. At that point,
however, the onus will be on the employer to provide a reasonable
accommodation, absent justification of its rule or undue hardship.
The employee's ability to self-accommodate could be a factor in
what reasonable steps the employer must take.
The approach in SMS Equipment is somewhat consistent
with the stance that courts take in assessing religious
accommodation cases – as long as the complainant demonstrates
a nexus between the asserted practice or belief and their spiritual
faith, in most cases employers are not entitled to inquire about
the strength of the religious convictions and must accept them as
While the Court found it inappropriate for employers to engage
in the one-sided intrusive inquiry into what the employee could do
to self-accommodate before it considered whether it could
accommodate the employee, the decision implicitly indicates this
"intrusive" inquiry may still be necessary at the
accommodation stage. However, we expect that there may be
challenges to the right or the scope of these inquiries in the
future using the religious accommodation cases in support.
So far, BC courts have adhered to the stricter approach toward
family status accommodation. However, BC is an outlier within
Canada and we expect that there could be a Supreme Court of Canada
decision on this issue. In our view, it is not likely that the
Supreme Court of Canada will follow the stricter approach.
In the wake of SMS Equipment, employers should take
more care in responding to requests to accommodate child or elder
care (or other family-related) duties in the workplace.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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