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 must be the parent or
responsible for the child’s care
■■ Legal 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
The test has not been considered by the Supreme Court of
Canada, but it clearly signals a much more purposive approach to
“family status,” one which provides a greater level of protection for
employees with childcare obligations and further, which can be extended
to include “elder care” responsibilities.
Given that the obligation to accommodate, or at least inquire
into possible accommodation, may exist even where the child or eldercare
arrangements are only “difficult” or “impractical,” how can
employers know how far they have to go in accommodating what
were formerly family “lifestyle choices”?
In SMS Equipment v. CEP, Local 707, the Alberta Court of
Queen’s Bench upheld an arbitrator’s decision that SMS discriminated
against an employee on the basis of family status by refusing
to accommodate the employee’s childcare responsibilities.
The employee was a single mother of two children and worked
night and day shifts as a welder for SMS. She requested daytime
shifts because she had no extended family to assist her with childcare.
The requirement of working night shifts meant she not only
had to pay for a third party caregiver to look after her children
during the night, but she then had to either pay a caregiver to
watch them during the day (so she could sleep), or had to watch
them herself, which gave her very little time for sleep.
SMS could not prove that the accommodation (steady days)
would cause undue hardship, particularly given that another employee
was willing to trade off and work straight nights. The
Alberta Human Rights Tribunal held that SMS failed to accommodate
the employee and set out the following test in establishing
discrimination based on family status under the Alberta Human
Rights Act: (i) the employee has a characteristic that is protected
from discrimination (in this case, family status); (ii) the employee
experienced an adverse impact; and (iii) the employee demonstrated
that the protected characteristic was a factor in the adverse impact.
In Miraka v. ACD Wholesale Meats Ltd., the Ontario Human
Rights Tribunal held that the decision to terminate an employee
for “unreliability” (after missing three consecutive days of work)
was related to the employee’s obligation to his childcare and therefore
contrary to the Ontario Human Rights Code.
The employee was a driver for a wholesale meat distributor. His
job required him to come to work early in the morning to prepare
the deliveries for the day, except for Mondays when he didn’t have
to report in until later in the morning. On Monday, June 11, 2012,
he told the office manager that he would have to stay at home the
next day ( June 12) and take care of his children (one and four
years of age) due to the illness of his wife, who normally cared
for them. Specifically, he said that due to his wife’s anxiety, he was
afraid to leave the children alone with her because they would be
essentially “unattended” and, further, that they lived on the seventh
floor of an apartment with a balcony.
On June 13, 2012, he was scheduled to start work around 5:00
a.m., yet didn’t call in until around 11:00 a.m. At that point, he
told the employer that he could not attend work for the same reason;
that is, his wife was still ill and he had to stay home again to
take care of his children.
On June 14, 2012, he returned to work but injured himself and
had to leave. The employer testified that the decision to terminate
was due to unreliability, although there was an issue of alleged discrimination
on the basis of disability given his injury on the 14th.
The Tribunal found that the termination was discriminatory,
that the employee’s absences on all three dates were at least a
significant part of the reason the decision to terminate and that
it would be unreasonable to leave the children alone with their
mother (i.e., the children would have been placed at risk) which
would engage his legal responsibility under the Johnstone test.
Perhaps more troubling for employers is that the Tribunal stated
that it was “not convinced that the requirement to demonstrate
reasonable efforts to make alternative childcare arrangements applies
in cases like this, where there is only an infrequent, sporadic
or unexpected need to miss work to take care of one’s children.”
The employer’s argument that the employee was obliged to find
alternate childcare on short notice was rejected and found to be inconsistent
with the legal obligation to care for his children.
As to the issue of why the employee couldn’t give proper notice
of his inability to attend work prior to his shift on the 13th,
the Tribunal appears to have accepted the evidence that he was so
tired from the night before that he was not “thinking clearly.”
There is likely some sympathy for the frustration of an employer
where an absence cannot be filled because of late notice. There
is also the added concern that even temporary accommodation
requests can trigger the obligation to accommodate, despite having
a clear adverse effect on the employer’s business. The decisions
did make one thing clear: there does not have to be a “serious interference
with a substantial parental or other family duty.” If the
employee’s request for accommodation triggers the legal obligation
REMEMBER THAT EMPLOYERS
ARE ENTITLED TO ASK FOR
A SPECIFIC ACCOMMODATION
REQUEST IN ORDER TO MAKE
AN INFORMED DECISION.
34 ❚ OCTOBER 2016 ❚ HR PROFESSIONAL