“Family Status” and Employers’ Duty to Accommodate: The Federal-Provincial Child Care Agreement
– Rob Dombowsky, Industry Advisor, Human Resources & Labour
Background
On November 15, 2021, the federal and provincial governments announced an agreement to fund the expansion of accessible and affordable childcare. This is a game-changer for working families for several reasons. First, this program will reduce the childcare cost of families by up to half in early 2022 and to $10 a day within five years. Second, this should have a positive effect on the labor market, as many people who have opted to exit the labor market to take care of children for financial reasons may have the incentive to return to work.
For employers, it’s important to be aware of these changes and that they could potentially affect some of your existing or future workers. Many people who did not have childcare previously will begin shopping for childcare providers. Parents with existing arrangements may begin looking for other, more suitable options. As a direct result, many employees may request time off or accommodations for childcare issues such as finding new providers, dealing with a Covid-19 outbreak at a daycare, or late starts or early departures to drop off or pick up kids.
The Issue
While employers have no direct involvement in this program, they are directly impacted by their employees and the need to accommodate workers with “Family Status Issues”.
Employers often think that they can say no to any request and be done with the conversation. In doing so they run the risk of running afoul of the Human Rights Act. The impact of making a mistake, should the employee decide to challenge their employer with the Human Rights Commission, could result in hefty fines and lawyer fees to defend against a complaint. Decisions are public and could cause reputational damage to the employer [1]. At the end of the day, the fines, wages, and fees will likely cost more than making an accommodation.
The Rules
The legislation in question applied here is either the Alberta Human Rights Act for Alberta-based employers or the Canadian Human Rights Act [2] for federally regulated employers. In either case, the information that follows applies to all employers. Employees under a collective agreement are also subject to these acts unless the collective agreement provides additional rights.
Family Status, a protected ground defined by the Alberta Human Rights Commission, is “the status of being related to another person by blood, marriage or adoption. [3] ” However, when applied to the employment relationship, an employer has a duty to accommodate to the point of undue hardship in situations where family status interferes with an employee’s ability to perform the duties of the position.
This requirement is limited to situations where the employee’s family responsibilities exceed the ordinary level. In most cases, when a child is sick with a common illness, the employer is not normally required to accommodate the employee and allow them to remain home with an ill child. However, according to the Alberta Human Rights Commission, “the employer would be required to accommodate an employee’s search for alternative childcare, up to the point of undue hardship”. [4] They would also possibly have to accommodate an employee whose child must remain home due to a Covid outbreak at that daycare.
What is Accommodation to the Point of Undue Hardship?
Accommodation to the point of undue hardship is something that employers should ensure they have a good understanding of. “Accommodation means making changes to certain rules, standards, policies, workplace cultures, and physical environments to ensure that they don’t have a negative effect on a person because of the person’s mental or physical disability, religion, gender, or any other protected ground.[5]” The duty to accommodate is a legal obligation that employers must follow. The courts have ruled that an employer has a legal duty to take reasonable steps to accommodate an employee’s individual needs based on a protected ground to the point of undue hardship.
Many employers would argue that everyone should follow the same rules or have equality in the workplace. In reality though, employers should consider the concept of equity, which recognizes that each person has different circumstances and allocates the exact resources and opportunities needed to reach an equal outcome [6].
Undue hardship occurs if accommodation would create onerous conditions for an employer such as intolerable financial costs or serious disruption to business [7]. It’s also important to note that a small business would be treated very differently than a large international corporation dealing with an identical situation.
Solution
First, listen and try to work with the employee to provide workable alternatives from the perspective of the employer. While employers have a duty to accommodate, they do retain a lot of decision-making power. Employees should be requesting accommodation and not making demands. At the same time, the employer should be open to the request and consider other options that may work better for the employer’s needs.
As part of the discussion, the employer should determine what steps the employee has taken to resolve the issue before making their accommodation request. It’s ok to ask, in order to understand and aid in decision making. Any reasonable options should be discussed, and a decision made through discussion between the worker and the employer.
If the employer has provided reasonable options for accommodation their obligation has probably been met. They do not need to accept on the employee’s terms if they feel the request is unreasonable. The employee also has an obligation. They have an obligation to accept an offer of reasonable accommodation [8].
Where most employers go wrong, be it Employment Standards, Collective Agreements, or Human Rights, is a lack of documentation. Always document critical discussions and provide the employee copies, preferably by email or having them sign a copy. This demonstrates that the employer has taken the correct steps. Having a paper trail is key.
Our Services
AMTA can provide members with one-on-one guidance on the information provided in this article. If you have any questions, please contact AMTA and our experienced staff will be happy to help. For your Safety, Compliance, and Human Resources questions, or for more information regarding HR and Labor issues, please email AMTA Member Services at memberservices@amta.ca.
Case Study 1
Employee X wants to find a new daycare for his child. He’s a single father and needs to take three afternoons off to visit three daycares for guided tours. The company is in the middle of their busy season and needs him making deliveries. Should the company accommodate his request?
Yes, they should. However, they should propose a few alternatives to accommodate and do not need to provide three afternoons off. Through discussion, the employee agrees to visit two on the same afternoon and will arrange a tour of the third before work starts and will arrive 30 minutes late that day.
If the company says no, they run the risk of contravening the human rights act. However, if they propose the alternative above, and document it suitably, and the employee still refuses that option they would likely be in good standing. The employee has a duty to accommodate the employer too.
Case Study 2
Employee X’s child is sent home from school because of a Covid outbreak in his class. The employee requested two weeks off to take care of his child. Does the company have to accommodate?
It depends on many factors. Is the child sick? How old is the child? Is the other parent able to look after the child? Can a sibling look after the child? Once that information is available, the employer could make an informed decision. If the child were 17 and not sick there would be less need to accommodate compared to a five-year-old.
Case Study 3
Employee X would like to move from the night shift to the day shift because his wife will return to work in the new year. With the cost of childcare halved, it makes sense for the family to resume a somewhat normal family schedule. With her working, the night shift premium is less relevant to the family. The worker currently works from 9:00pm to 6:00am Monday to Friday and has been with the company for 2 years.
More info is needed, but it would be recommended that the company grant the request, when the next available day shift opens. It would create equity to allow a promotion from the night shift to the day shift, instead of hiring a new dayshift worker and keeping the employee on nights. This would be a form of accommodation.
Case Study 4
Employee X works for Company Y. His kids are playing hockey at 5:00PM each day. Work finishes at 5:00PM. He requests an accommodation to start early and leave at 4:30PM so he can be there. Does the employer need to accommodate?
No. Being an active parent, in this case, is a personal choice. The Company could deny the request.
References
Decisions – Alberta Human Rights Commission (August 2011) https://albertahumanrights.ab.ca/decisions/Pages/decisions.aspx
Canada Human Rights Act, R.S.C., 1985, c. H-6, https://laws-lois.justice.gc.ca/eng/acts/h-6/fulltext.html
Alberta Human Rights Commission – Family Status and Marital Status, (November 2017), https://albertahumanrights.ab.ca/publications/bulletins_sheets_booklets/sheets/protected_grounds/Pages/family_and_marital_status.aspx
Alberta Human Rights Commission – Family Leave, (December 2009) https://albertahumanrights.ab.ca/employment/employer_info/accommodation/Pages/family_leave.aspx
Alberta Human Rights Commission – Duty to Accommodate, (July 2017) , https://albertahumanrights.ab.ca/publications/bulletins_sheets_booklets/sheets/hr_and_employment/Pages/duty_to_accommodate.aspx
Activity: Visualizing Equality vs. Equity, https://albertahumanrights.ab.ca/employment/employer_info/accommodation/Pages/family_leave.aspx
Alberta Human Rights Commission – Public Workshop Presentation, (Nov 27-28, 2021).
https://albertahumanrights.ab.ca/education/workshops/Pages/public_workshops.aspx