Recent awards involving family status accommodation have highlighted the unique, perhaps intrusive, inquiries that employers may need to make in addressing the potential need for family status accommodation.
A recent Ontario decision, involving eldercare, demonstrates what can happen when an employer does not make the inquiries it should. In this case, the employer, an architecture firm, required employees to attend at work during core hours. The employee, a long service architect, became the primary caregiver for his mother who became increasingly and seriously disabled. This resulted in the architect being out of the office for significant periods of time (e.g. 38 times in just under 3 months).
The employer was working on a very large and complicated project. The employee was the senior employee on the project and the employer wanted him working in the office. It warned him on several occasions that his failure to attend in the office could result in termination of his employment. The employee promised to attend at work but did not do so on a consistent basis. He insisted that he was available “24/7” and worked evenings and weekends. The employee was terminated due to his absences and filed a human rights complaint. He was successful.
Human rights law requires that the employer make appropriate inquiries to determine an employee’s need for accommodation even if the employee has not asked for accommodation. If the employer has sufficient information that it ought to know that the employee may need accommodation, the employer has a duty to inquire.
In this case, the Human Rights Tribunal determined that while the employer may not have known about the full extent of the need, it was sufficiently aware of the employee’s need to take care of his mother that it should have asked for more information. The Tribunal found that the employer did not make the inquires necessary to determine the scope of the need.
This decision is interesting for employers because it demonstrates the scope of inquiry that employers may need to make. Family status accommodation is only potentially engaged when the employee is “required” to deal with a family obligation. The employer may have to inquire about the requirement. In this case, the Tribunal indicated that employer should have asked about the mother’s health status, the extent of her care needs, the social services support available, her daily routines, her hospital visits and alternatives available to the employee. Those alternatives might include whether the employee had other family members who could assist, whether the employee ought to have hired assistance, and even as far as whether the employee ought to have considered placing his mother in an extended care home earlier than he did.
Employers will face the challenge of determining how far to inquire about the employee’s circumstances in order to understand whether and to what extent family status accommodation is “required” versus a choice. This searching inquiry can be complicated where the employee, as in this case, takes an “entitlement” attitude towards his obligation. Employers may need to push past an employee’s attitude. If the employee refuses to provide needed information, then the employer may be able to tell the employee that it will not be accommodating the family status obligation.
In B.C., the test to engage the duty to accommodate is currently higher than other jurisdictions as the test requires that the employment conditions result in a “serious interference with substantial parent or other family duty or obligation”. However, B.C. employers may still be required to engage in a searching inquiry to determine whether the duty to accommodate exists. An employer that ignores circumstances that indicate family status may be a workplace issue for an employee does so at its own peril.