What should employers do if an employee says he or she needs to start work an hour later every day to take their child to school?
The question of how an employer should accommodate child-care obligations has become a hot topic for human rights law, and for good reason. Almost every workplace has employees trying to balance work commitments with child-care needs.
This May, the Federal Court of Appeal released a decision dealing with this topic. British Columbia employers should take note of this decision – it could change the way the BC Human Rights Tribunal and the courts view an employer’s duty to accommodate family obligations in the workplace.
Provincial and federal human rights laws prohibit B.C. employers from discriminating against employees based on family status. This means that employers cannot refuse to hire, dismiss or adversely change an employee’s conditions of employment based, in whole or in part, on their family status.
It also means that employers have a duty to accommodate family status in certain circumstances. The legislation does not define family status, so the extent to which it includes child-care obligations has been left for the tribunals and courts to decide.
The British Columbia Human Rights Tribunal and the courts have set the bar high for employees to establish discrimination based on a failure to accommodate family obligations.
In the leading case, Campbell River and North Island Transition Society vs. Health Sciences Association of British Columbia, the BC Court of Appeal held that such discrimination exists only when an employer has caused serious interference with a substantial family obligation and that in most cases where there is a conflict between a work requirement and a family obligation, discrimination will not exist.
As a result, the duty to accommodate child-care obligations in British Columbia has been limited to atypical cases, such as the need to care for a child with special needs.
The Canadian Human Rights Tribunal and the courts applying federal human rights laws have not followed our provincial approach. The recent Federal Court of Appeal decision confirms that this trend is here to stay.
In Canada vs. Johnstone, the Federal Court of Appeal found that an employee was discriminated against because her employer denied her requests for fixed shifts to accommodate her child-care needs. The employee was a full-time employee and only part-time employees got fixed shifts. In order to receive fixed shifts, the employee had to work part-time and therefore lose her full-time benefits.
The court found that family status includes any child-care obligations that a parent cannot neglect without engaging legal liability, such as the requirement not to leave a child at home unsupervised.
The court did, however, place limits on the duty to accommodate child-care obligations. Employers do not have to accommodate voluntary activities such as extracurricular sports or lessons; employees must make reasonable efforts to find alternative child-care arrangements and no such alternative must be available; and the impugned workplace rule or decision must interfere with the fulfilment of the child-care obligation in a manner that is more than trivial or insubstantial.
In light of this, employers should consider the following when asked to accommodate family obligations:
What is the nature of the obligation?
Has the employee taken steps to resolve the issue?
If accommodation is required, are options available such as flex hours or leaves of absence?
We expect that the BC Human Rights Tribunal and courts applying our provincial laws will continue to apply the Campbell River test.
However, as more cases involving child-care obligations arise, the bar set in Campbell River may be lowered and British Columbia’s employers will have a heightened duty to accommodate their employees’ child-care needs. •
Andrew Schafer ([email protected]) is an associate in Bull Housser’s labour and employment group.
