Over the past few years, there has been a lot of time and ink devoted to understanding the scope of “family status” protection under federal and provincial human rights legislation. As a result, Canadian employers are often left scratching their heads when faced with a “family/ childcare” accommodation request in the workplace.
The State of the Law
You may recall that there had been (and still is) an attempt to clarify what would constitute discrimination on the basis of family status when it came to childcare obligations. Family status includes not only the status of being a parent, but also the potential obligations that flow from that status; and second, that the review of whether or not the obligation to accommodate is triggered, may include an assessment of the following factors:
· Parental Obligation: The employee’s childcare obligation must engage his/ her legal responsibilities to the child, rather than being merely a personal family choice
· Reasonable efforts: the employee must show that he/she has made reasonable efforts to meet the childcare obligations through alternative solutions, and that no such alternative solution is reasonably accessible
· Real interference: the “offending” workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation
What Should Employers Do?
The first step for employers should be to review and, if necessary, update their policies and procedures concerning accommodation in order to treat each request fairly and independently. Each accommodation request comes with its own set of facts and history and while employers may sometimes be hard-wired to reject requests that seem trivial, being both compassionate and creative and avoiding a “one size fits all” approach to accommodation may be far more effective.
Remember that employers are entitled to ask for information concerning a specific accommodation request in order to make an informed decision. Open-ended requests without the support by appropriate and necessary information need not necessarily be accommodated and employees cannot “cherry pick” the job/shift or accommodation they prefer.
Life is becoming more complicated for employees and employees alike. The hope is that in the long run, with practice, patience and creativity, both sides will be successful in integrating the need for family status accommodation in a manner which addresses the employee’s concern as well as the employer’s operational needs.