The issue of an employer's obligation when employees are
requesting accommodation on the basis of family status continues to
be a vexing one. Recently, the Supreme Court of Canada refused to
consider an appeal dealing with family status that was brought from
the Federal Court of Appeal.
In this case, an employee went on a year-long maternity leave.
In anticipation of her return, the employee requested that she be
allowed to work from home, in order to breastfeed her infant.
However, the employer and employee were unable to agree on a work
schedule. As a result, the employee filed a grievance, alleging she
was not being accommodated, both on the basis of sex and family
status. The grievance was initially denied, but that decision was
appealed to the Federal Court of Appeal.
In its decision, the Federal Court of Appeal noted that for an
employee to establish that there is an initial (prima
facie) case of discrimination on the basis of family status,
the employee has to establish four things:
That a child is under the
The childcare issue engages the
employee's legal responsibility for that child, as opposed to a
The employee made reasonable efforts
to meet those childcare obligations through reasonable alternative
That the employer's rules or
actions (or inactions) interfere, in more than a trivial or
insubstantial manner, with the employee's fulfillment of the
It is only once this case is made out that the employer must
demonstrate that the employer accommodated the employee to the
point of undue hardship.
The decision in this case turned mostly on the second element of
the test – the employee's legal responsibility to care
for her child. The employee had two medical notes from a doctor;
the first supporting the employee's choice to breastfeed her
child beyond the one year maternity leave, and the second noting
that the employee should be breastfeeding twice over an eight hour
period to ensure that the milk supply is maintained.
Notwithstanding this, the Federal Court of Appeal confirmed the
arbitrators finding that the employee's choice to breastfeed
her child during working hours was a personal, rather than a legal,
responsibility. Importantly, the Court also found the employee in
this case did not make reasonable efforts to find an alternative
The Supreme Court of Canada's decision to deny leave to
appeal in this case implicitly confirms both the conclusion reached
by the Federal Court of Appeal and the four-part analysis to
determine whether the employer has an obligation to accommodate on
the basis of family status. It should be noted, however, that the
Federal Court of Appeal went to some length to make it clear this
case was decided on its own facts. While the facts are not entirely
unique, meaning the decision does provide guidance to employers in
managing these types of issues, it is important that employers
carefully consider an employee's circumstances when
accommodation requests of this nature are made.
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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