The society we live in has changed drastically over the last 50 years. The amount of pressure facing household providers has increased significantly in several respects. There has been an increase in both the proportion of single-parent families, as well as the number of households with two working spouses. In the early 1960s, single-parent families represented a mere 8.4 percent of Canadian families; by 2011, that number had risen to 16.3 percent. And while only four out of 10 households had two working spouses in the mid-1970s, that number leaped to about seven out of 10 households in the late 1990s. Furthermore, in Canada today, a significant proportion of households are caring for elderly parents or ill family members. Thirty percent of Canadians 45 years and older care for loved ones, and nearly 60 percent of these caregivers are employed full-time.
Unsurprisingly, employers are now confronted with an increasing number of accommodation requests from employees, based on their civil or family status. Of great consequence to employers is that our courts and tribunals have broadly interpreted the meaning of “civil” or “family” status. In Québec and Ontario, it includes the parent/child relationship, which encompasses the relationship between a parent and his or her adopted child.
What are the employers’ obligations in these circumstances? Moreover, what are the obligations of employees who are requesting accommodations? How can a balance be struck between a business’ operational imperatives and an employee’s legitimate requests? And most importantly, how can these matters be resolved without winding up before the courts?
Attorney General of Canada v. Johnstone
In Canada, there are currently two lines of authority on this subject, and they seem to be converging. Although the Supreme Court of Canada has not yet ruled on this issue, two recent decisions from the Federal Court of Appeal, including Attorney General of Canada v. Johnstone, 2014 CFA 110, provide guidance as to which interpretation should prevail.
In Johnstone, the Federal Court of Appeal concluded that the employer had discriminated against Ms. Johnstone by refusing to implement measures that would have allowed her to meet her family responsibilities. Ms. Johnstone had requested accommodation from her employer, the Canadian Border Services Agency. Ms. Johnstone’s request, in substance, was for a fixed work schedule, in lieu of the rotating shift schedule that was associated with her position. Her spouse had a similar work schedule, and despite repeated attempts, Ms. Johnstone had been unable to secure satisfactory childcare arrangements for when she and her husband were both at work. The Canadian Border Services Agency declined Ms. Johnstone’s request for fixed shifts. Her request was rejected, not on the basis that the accommodation would cause undue hardship, but rather because the employer claimed that it had no legal duty to accommodate the employee in the foregoing circumstances. It was, however, the Agency’s standard practice to accommodate employees who requested fixed shifts for medical or religious reasons.
The Court in Johnstone determined that an employee filing a request for accommodation in such cases must establish that:
- the child is under his or her care and supervision;
- the childcare obligation at issue results from the individual’s legal responsibility for that child. The applicant must prove, among other things, that the child has not reached an age where he or she can reasonably be expected to take care of himself or herself during the parents’ work hours. The applicant must also demonstrate that the need for childcare is one that flows from a legal obligation, as opposed to a personal choice;
- the employee has made reasonable efforts to meet those childcare obligations through alternative solutions, and that no such alternative solution is reasonably accessible; and
- the impugned workplace rule interferes with the fulfillment of the childcare obligation, in a manner that is more than trivial.
Ms. Johnstone successfully met this burden, and the employer did not make any claims that the accommodation would result in undue hardship. Consequently, the Federal Court of Appeal concluded that the Agency had discriminated against Ms. Johnstone by failing to accommodate her family status.
Best practices for employers
In light of this case, the following best practices can serve as guidelines to employers who wish to avoid finding themselves in the same situation as the Canadian Border Services Agency.
- Employers must be attentive to their employees’ requests and respond to any request for information regarding programs the employers have adopted to meet the employees’ family needs. Such requests are legitimate and protected by human rights legislation.
- Employers should avoid broad and uniform policies. The best approach is to assess each case based on its own facts. Prudent employers would be well advised to develop written policies that implement a mechanism delineating the individual assessment process. These policies should specify that requests for accommodation based on family status will be handled within a reasonable time frame.
- Employers have the right to ask employees to properly explain the nature and the necessity of their request for accommodation. The family responsibility that the employee is seeking to address in his or her request for accommodation must not be trivial. The employee’s obligation must be substantial, such as the duty to provide care to his or her child.
- Employers must assess whether an employee’s request is a matter of preference or obligation. A duty to accommodate is solely triggered where there is a conflict between a professional obligation, such as workplace attendance, and a parental or family responsibility. No such duty is triggered in the case of a personal choice. For example, a parent’s desire to attend a child’s Christmas concert is not a substantial obligation, but a choice or preference.
- Employers must examine the employee’s efforts to handle the conflict between his or her professional obligations and family responsibilities. The employee must attempt to mitigate the problem first by exploring alternative solutions, and is required to communicate such attempts to his or her employer.
- Employers must assess the extent to which granting accommodation could adversely impact their business, and whether or not the employees’ requested accommodation is excessive. Employers are not required to provide accommodation that would constitute undue hardship. However, employers should bear in mind that “undue hardship” has been narrowly interpreted by Canadian courts.
- Employers must explore all of the accommodation measures suggested by the employee and document their findings. They may also suggest alternatives. Employees must accept reasonable accommodations suggested by the employer, even if the suggested solution is not ideal or their first choice.
The conclusions of the Federal Court of Appeal impose a heavy burden on employers. However, the context of Johnstone is exceptional; not all employees are subject to such demanding work schedules. Nonetheless, it is evident that professional and family lives no longer unfold in separate spheres. More and more, professionals in the workforce are finding themselves in situations where they must meet substantial family obligations, regardless of their professional responsibilities. Given this reality, smart employers will be ready to handle the requests for accommodation, despite the constraints such requests may impose on their operations.