Canada: The Sandwich Generation: 5 Employer FAQs About "Family Status" Accommodation

Last Updated: May 26 2016
Article by Amanda Nash

Membership in the "sandwich generation" no longer means an employee who brown bags her lunch; it means one who's squeezed between raising her children on one side, while at the same time caring for her aging parents on the other side. And it's not just the employees in the sandwich generation who feel the squeeze; it's also their employers. The increasing number of employees sandwiched between generations means the effect isn't confined to the home; it's spilling over into the workplace:

As more and more families struggle to manage competing demands of the workplace and of care-giving responsibilities, family status discrimination claims have risen. Courts and arbitrators have been forced to balance the interests of employees in difficult situations against the value of freedom of contract and the need to be fair to employers. Employers without an appetite for accommodation might be served a human rights complaint for dessert.

Here are the answers to five of employers' most frequently asked questions about accommodating employees on the basis of family status.

1. What is "family status"?

That depends. "Family status" typically refers to a protected ground under human rights legislation. However, human rights legislation varies from Province to Province for provincially regulated employers, and federally for federally regulated employers. Many – but not all – prohibit discrimination on the basis of "family status", and where they do, the definition of "family status" can vary. For example, PEI's human rights legislation prohibits discrimination based on "family status" defined as, "the status of being in a parent and child relationship". Employers should look to the specific legislation in the Provinces in which they operate for the specific requirements when developing policies and making decisions regarding accommodation.

2. What does the "family status" ground protect?

This is a developing area, so the scope of the protection of "family status" is a work-in-progress. But so far, we know it includes the protection of childcare and eldercare obligations:

  • Childcare Obligations. Courts and arbitrators have confirmed that the prohibited ground of discrimination based on "family status" includes a parent's childcare obligations, so an employer is prohibited from discriminating against an employee based on his or her childcare obligations. There have been several court and arbitration decisions dealing with employee "family status" accommodation requests, but two of the most well-known are both from the Canadian Federal Court of Appeal: Canada (Attorney General) v. Johnstone, 2014 FCA 110 and Canadian National Railway Company v. Seeley, 2014 FCA 111.
  • Parent or "Elder Care" Obligations. Although there are fewer decisions dealing with "family status" discrimination in the context of eldercare, those that do exist seem to confirm that care of a parent is also included in "family status" in human rights legislation. For example, read the Ontario Human Rights Tribunals' decision in Devaney v. ZRV Holdings Limited 2012 HRTO 1590.
  • How a Family is Formed. Human rights legislation doesn't necessarily make what constitutes a "parent" clear. It appears there's only one decision that has dealt with the question whether "family status" under human rights legislation includes how someone became a parent. The answer, at least in NS, is that it does. A collective agreement gave adoptive parents a top-up when they went on parental leave, but didn't give the same benefit to biological parents. The employee, a biological parent who was denied top-up benefits, complained this distinction discriminated against him on the basis of family status. The Board agreed, deciding "family status" under the NS human rights legislation includes the nature of the parent/child relationship. Whether other human rights legislation will be interpreted in a similar manner depends on the specific wording of that legislation – but this question is likely to come up again, and this decision will certainly be relevant to the answer. Read the NS Human Rights Commission Board of Inquiry's decision in Adekayode v. Halifax (Regional Municipality), 2015 CanLII 13866 (NS HRC) here.

3. Do employers have to accommodate every aspect childcare or eldercare?

No. It's clear that an employer doesn't have to accommodate every aspect of an employee's childcare or eldercare obligations: only those obligations that engage the employee's legal responsibilities. Courts have set out a clear four-part test employees must meet to succeed in a discrimination claim based on "family status" resulting from childcare obligations:

  1. Care and supervision. The employee must prove that a child is actually under her care or supervision: that she stands in such a relationship to the child at issue that her failure to meet the child's needs will engage her legal responsibility. For parents, this will normally flow from their status as parents; for other caregivers – those who are not parents – the employee must show she has assumed the legal obligations that a parent would have.
  2. Legal Responsibility. The childcare obligation engages the employee's legal responsibility for that child, as opposed to a personal choice. The employee must prove the child hasn't reached an age where she can reasonably be expected to care for herself during the parent's work hours. It also requires the employee to prove that the childcare need flows from a legal obligation, as opposed to from personal choices: the law protects the fulfillment of those parental obligations engaged by the parent's legal responsibility to the child, not personal family choices. So not all family commitments necessarily trigger the employer's duty to accommodate; for example, it's not triggered for requests such as:

    • a transfer to another work site to be closer to family;
    • accommodation to attend a child's hockey tournament, dance classes, or other similar events or voluntary activities; or
    • an alternative shift schedule to spend more time with children even though an alternate childcare arrangement has been made.
  3. Reasonable Efforts. The employee has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible. An employee must prove that neither she nor the other parent (or guardian) can meet their legal childcare obligations while continuing to work, and that an available childcare service or an alternative arrangement isn't reasonably accessible to them such to meet their work needs. This is highly fact specific, and the employer (or tribunal, arbitrator or court) will review each case on an individual basis having regard for all of the circumstances.
  4. Non-trivial Interference. The workplace rule in issue interferes with the fulfillment of the childcare obligation in a manner that's more than trivial or insubstantial. The employer (or tribunal, arbitrator or court) must examine the underlying context of each case in which the childcare needs conflict with the work schedule to ascertain whether the interference is more than trivial or insubstantial.

There's hasn't been any decision yet setting out a test for discrimination based on "family status" resulting from an employee's eldercare obligations. However, the few decisions on eldercare obligations have referenced the childcare test, so employers should be able to apply the same considerations with appropriate modifications.

4. What are the penalties for discriminating on the basis of "family status"?

The role of human rights tribunals is to remedy a case of discrimination, and they have broad authority to fashion a solution that's appropriate to make the complainant employee "whole". For example, human rights tribunals can:

  • make monetary awards to employees to compensate them for the distress and humiliation of being discriminated against and to compensate them for any loss of income that resulted from the discrimination;
  • require employers to stop the discriminatory conduct and rectify the discrimination against the employee generally, or in a particular way, like granting the employee a particular accommodation; or
  • require employers to implement training, policies or procedures to address the discriminatory conduct.

The remedy that the NS Human Rights Tribunal Board of Inquiry fashioned in its recent decision finding family status includes how a family is formed (Adekayode v. Halifax (Regional Municipality), 2015 CanLII 13866 (NS HRC)) illustrates the breadth of a human rights tribunal's powers to make an employee whole. The tribunal concluded the employer discriminated against the employee on the basis of family status when it gave top-up benefits for parental leave to adoptive parents, but denied them to biological parents, depriving the employee of money but also time with his child – and awarded him a paid parental leave with top-up even though the child wasn't an infant anymore.

5. How do employers accommodate "family status"?

There's no "standard" answer to requests for accommodation on the basis of "family status" (or on any other basis). As with a request for accommodation of any characteristic protected under human rights legislation, employers must consider each individually and, where appropriate, accommodate the employee to the point of undue hardship.

The legal test for discrimination based on family status resulting from childcare obligations (see Question 3 above) provides employers with a guideline for the considerations they should apply when handling an employee request for accommodation on this basis. Practically, in many cases, scheduling modifications will adequately address requests for family status accommodation; for example:

  • changing an employee's existing schedule;
  • maintaining an existing schedule;
  • allowing the employee to work specific shifts, such as only days, only nights, only mornings; or
  • limiting the number of hours an employee works in a day.

In addition, the general guidelines that apply to all accommodation requests apply equally to family status, and will help employers understand their rights and obligations:

  • Two-Way Street. Accommodation requests come up as a result of employer-initiated workplace changes, or changes to the personal circumstances of an employee or her family. An employer considering changing its operations should consider how it might impact its workforce and, where possible, provide advance notice of any changes to give employees the opportunity to make necessary arrangements or adjustments.
  • Living Tree. The duty to accommodate isn't unlimited, but it is an ongoing and continual process. The accommodation obligations begins when an employer is aware or ought to be aware of the need for accommodation, and may take many forms as an individual's family status and obligations evolve over time. The duty to accommodate doesn't end until the employment relationship ends, or the employer can establish undue hardship.
  • One Size Does Not Fit All. An employer might have standardized procedures for evaluating requests and implementing accommodation, but there can't be standardized remedies. Employers must consider the individual circumstances of the employee requesting accommodation and work with her to determine an appropriate accommodation.
  • The Right to Know. Employees requiring accommodation can't expect to be accommodated without divulging details of their personal circumstances. An employer has the right to request information about an employee's efforts to meet her obligation without a workplace accommodation, including information about an employee's marital status, whether the employee co-parents, where the other parent works and if so, her respective work schedule.
  • Write it Down. Keeping accurate employment records isn't new, but thorough and accurate records of the accommodation process will be important as an employee's accommodation needs evolve and, if needed, could provide a defence to a human rights complaint for failure to accommodate.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions