An employer’s “duty to accommodate” is a continually evolving – and sometimes confusing – area of the law. While accommodating employees with a disability is typically familiar territory for many employers, the legal obligation regarding accommodating on the basis of “family status” is still emerging. It is simple enough to state that an employer may not discriminate on the basis of family status, but what that means is far from settled. One of the trendsetting topics is whether, and to what extent, employers must accommodate the choice to breastfeed as part of the family status ground. This issue is particularly timely for those of us in Atlantic Canada, where breastfeeding rates have roughly doubled in the past decade. More and more employers are facing the issue of how to respond.
This question was most recently addressed by the Canada Public Service Labour Relations and Employment Board (the “Board”), in the case Flatt v Treasury Board (Department of Industry).
Laura Flatt was a spectrum management officer at Industry Canada, who took maternity leave for her first child in 2007 and her second in 2009. At the end of the first leave, she requested a telework arrangement whereby she was in the office four days per week and at home one day per week. This arrangement persisted until she took the second leave. Following the second leave, Flatt requested, and was allowed to telework two days per week.
In 2012, Flatt went on her third maternity leave. In advance of her return to work, Flatt initiated negotiations regarding future telework arrangements. She first requested a full year of telework five days per week in order to allow her to continue breastfeeding her son full time. After discussion with management, Flatt made an alternative proposal of two teleworking days per week with a modified schedule. Ultimately the employer decided only one day of teleworking per week was possible. Management also offered an extended leave without pay. Flatt and her managers reached an impasse. As a result, Flatt filed a grievance in March 2013.
The Board tackled what is necessary to establish a prima facie case of discrimination on the basis of breastfeeding and, in doing so, relied on a test from previous cases for discrimination on the basis of family status:
- that a child is under his or her care and supervision;
- that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
- that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
- that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.
How does this apply to breastfeeding and to Ms. Flatt in particular? The Board decided that she did not meet the second and third steps.
The conclusion on the second step boiled down to the fact that Flatt did not have a “legal responsibility” to breastfeed her son. The Board drew comparison between Flatt’s case, where her son was healthy and breastfeeding was a personal choice, and previous breastfeeding decisions, both of which involved children who had medical problems and required ongoing breastfeeding for their health.
On the third step, the Board stated that Flatt’s efforts toward workable alternative solutions were insufficient. In particular, the Board focused on Flatt’s evidence that she had located a daycare which was close enough to the office that she could have gone back and forth to breastfeed. However, Flatt decided that the cost would be prohibitive and that she “would be working to just cover the cost of daycare”. The Board felt that this alone did not rule out the daycare as a reasonable alternative.
On these bases, the Board dismissed Flatt’s grievance.
The Board stated that, in these circumstances, management’s refusal to allow full-time telework was reasonable. Management’s negotiations were done in good faith and with due regard to the resource constraints under which it was operating.
Although discrimination cases are highly fact-specific, Flatt and other previous decisions offer a few takeaways for employers to consider in approaching breastfeeding accommodation requests:
- Accommodating employee requests surrounding breastfeeding should be taken seriously, as principles of discrimination are at play.
- The Flatt decision supports that medical justification may be required to demonstrate the breastfeeding decision relates to a legal responsibility. Employers could request the employee produce information from their doctor to that effect.
- Employees must explore reasonable alternatives to avoid requiring more burdensome accommodation than is required.
- When the employee has established that accommodation of breastfeeding is required, the employer must accommodate the employee’s breastfeeding up to the point of undue hardship. An explanation of what could work in your workplace should occur.
An application for judicial review has been filed with the Federal Court of Appeal on this matter, so there may be further guidance on this issue in the future. It is unclear whether future decisions will support the requirement of medical information or other information to justify that breastfeeding accommodation requests must be granted.