By Sheryl L. Johnson
Protection against discrimination on the basis of family status is relatively new in Canada. Perhaps its relative “newness” contributes to making it one of the most difficult forms of workplace accommodation requests for employers to respond to.
Generally, such requests will be connected to caregiving responsibilities and must arise out of the parent-child relationship – meaning childcare or eldercare responsibilities. In the case of the “sandwich generation,” it will be both. The difficulty for employers is not to immediately consider an employee’s caregiving requirements as an isolated personal choice as opposed to a requirement for accommodation resulting from family responsibilities beyond a caregiver’s control that preclude the employee from meeting work requirements.
In a recent example, the employer failed to view caregiving requirements as necessary for accommodation in the arbitration decision of International Brotherhood of Electrical Workers, Local 2034 v. Manitoba Hydro (Riley, September 10, 2013) and was found to have acted unreasonably and in breach of the collective agreement by refusing the grievor his flex-time request under the collective agreement’s flex-time provisions to change his start and end times to an hour later on the days he had custody of his child following his divorce.
However, given that the grievor did not adequately participate in his accommodation and make reasonable efforts to seek alternate solutions or try to “self-accommodate” (before looking to the employer), this breach was not found to be discrimination on the basis of family status.
So, as an employer, how do you avoid this pitfall? The human rights cases and the IBEW decision establish that after ensuring that you have the right mindset and are responding to such a request in good faith, there are five best practices to follow to balance employer/employee needs to avoid a finding of discrimination.
First, establish that there is a parent-child relationship and that there may be a case of discrimination that requires accommodation. This includes responding to a request that does not use any specific formal language or refer to an established policy or procedure, as well as determining whether an employee’s "unacceptable behaviour" is caused by a childcare or eldercare situation before discipline is implemented. Accommodation is appropriate if it will result in equal opportunity for an employee to attain the same level of performance, or to enjoy the same level of benefits and advantages, experienced by other, similarly situated employees.
Second, determine if there has been differential treatment that could amount to discrimination in the workplace. Not every caregiving/work conflict will give rise to a duty to accommodate. It may arise where rules, requirements, standards or factors have the effect of disadvantaging employees with caregiving responsibilities by imposing burdens that are not placed on other employees or by withholding or limiting access to opportunity, benefits or advantages available to others. Consider the nature of the caregiving responsibility versus the workplace conflict that it poses and weigh in any other factors that may be relevant (e.g. disability, age, gender and marital status). In determining whether a workplace rule, factor or requirement significantly interferes with a caregiving responsibility, take into account whether there are adequate social supports and services available for self-accommodation to resolve caregiving needs without the need for workplace accommodation.
Third, provide individualized accommodation. Each employee’s circumstances must be considered, assessed and accommodated individually and afresh. There is no set formula or “one fits all” solution. A solution may meet one employee's requirements but not another's.
Fourth, consider that the duty to accommodate may require modifying performance standards, policies or shift and schedules for work. If an employee is unable to perform the standard, but the standard is not considered an essential part of the employee’s job, it can be changed, removed altogether or reassigned to another employee. The same goes for policies and shifts or schedules. If they are essential, the employer is nevertheless required to accommodate the employee. This may include an adjustment of that performance standard, application of the policy or hours – to the point of undue hardship. Remember that determining whether an accommodation is "appropriate" is a completely separate determination from whether the accommodation would result in undue hardship.
Fifth, understand that accommodation is a cooperative process that is a matter of degree, rather than an all-or-nothing proposition. The accommodation process is a shared responsibility. The employee must cooperate and provide relevant information, including advising what they have done to attempt to address the conflict and any available outside resources about which they have inquired. Take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated and canvass various forms of possible accommodation and alternative solutions. Document your efforts. Grant accommodation requests to the point of undue hardship bearing in mind that you are not required to grant accommodation greater than what is needed.
If you implement these best practices, you will find that if the workplace parties try to seek a balance in a cooperative, open-minded manner, they will each get what they need.
Sheryl L. Johnson is a partner in Fogler Rubinoff’s Employment and Labour Law Practice Area.