2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
When Does an Employer Need to Accommodate Childcare Obligations?
On May 2, 2014, the Federal Court of Appeal clarified that an employer who fails to accommodate an employee’s childcare obligations may be found to have discriminated against the employee on the basis of family status: Canada (Attorney General) v Johnstone, 2014 FCA 110 [“Johnstone”].
Ms. Johnstone is an employee of the Canadian Border Services Agency (“CBSA”) and has two young children. The work schedule for full-time CBSA employees occupying positions similar to that of Ms. Johnstone is built around a rotating shift plan. To be considered a full-time worker, employees are required to work 37.5 scheduled hours per week under this plan. Any individual who works less than 37.5 hours a week is considered part-time. Part-time employees have fewer employment benefits than full-time employees, notably with regard to pension entitlements and promotion opportunities.
In order to meet her childcare obligations while maintaining her full-time status, Ms. Johnstone wished to work 3 days per week for 12.5 hours a day. She requested a fixed schedule as childcare arrangements could only be made for 3 days per week, and she was unable to make other arrangements. At the time, the CBSA had an unwritten policy allowing an employee with childcare obligations to work fixed schedules, but only insofar as the employee agreed to be treated as having a part-time status with a maximum work schedule of 34 hours per week. In light of this unwritten policy, CBSA offered Ms. Johnstone 3 fixed shifts per week for a total of 34 hours per week.
Unsatisfied with the CBSA’s offer of part-time employment in return for obtaining fixed shifts, Ms. Johnstone filed a complaint with the Canadian Human Rights Commission alleging discrimination on the basis of family status. The CBSA alleged it refused the proposed schedule of 3 fixed 12.5 hours shifts per week on the ground that it had no legal duty to accommodate Ms. Johnstone’s childcare responsibilities.
The issue before the Federal Court of Appeal (the “Court”) was whether the duty to accommodate an employee on the basis of family status includes childcare obligations.
Various courts, human rights tribunals and labour boards across Canada have consistently recognized that parental obligations, such as childcare obligations, may fall within the scope of family status. Accordingly, the Court reaffirmed this. It noted, however, that prohibited grounds of discrimination generally address personal characteristics that are unchangeable. So as to not overextend the reach of the Canadian Human Rights Act, the Court clarified that only those obligations that engage the legal relationship between a parent and a child fall under the scope of family status. Personal choices, such as family trips, participation in extracurricular sports events, etc., will not trigger the duty to accommodate. Therefore, the ground of family status in the Canadian Human Rights Act only includes parental obligations which engage the parent’s legal responsibility to the child, which includes childcare obligations.
The test to be applied if an employee requests accommodation in relation to childcare obligations is as follow:
- the child is under the care and supervision of the employee;
- the childcare obligation engages the employee’s legal responsibility for that child, as opposed to a personal choice;
- the employee has made reasonable efforts to meet those childcare obligations through alternative solutions, and no such alternative solution is reasonably accessible, and,
- the workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.
When applying this test, the Court clarified that a “complainant will, therefore, be called upon to show that neither they nor their spouse can meet their enforceable childcare obligations while continuing to work, and that an available childcare service or an alternative arrangement is not reasonably accessible to them so as to meet their work needs. In essence, the complainant must demonstrate that he or she is facing a bona fide childcare problem.” The Court found that the CBSA had failed to accommodate Ms. Johnstone and that its conduct constituted discrimination on the basis of family status. An award of damages was made in the amount of $15,000 for pain and suffering, $20,000 as compensation for lost wages and benefits as a result of her reduction in hours and change to part-time status.
WHAT THIS MEANS FOR EMPLOYERS:
This decision was made in relation to the Canadian Human Rights Act and is therefore most relevant to federally regulated employers. Federal employers will need to accommodate childcare obligations to the point of undue hardship for those employees who meet the four-part test. Requests for accommodations should be examined on a case by case basis. Accommodation will only be warranted if the employee has taken the necessary steps to ensure that his or her childcare obligations have been met using alternative means. Consequently, it is important for employers to request evidence of the steps taken by the employee.
Unlike the Canadian Human Rights Act, the New Brunswick Human Rights Act (the “Act”) does not include family status as a prohibited ground on which a claim for discrimination can be based. Therefore, New Brunswick employers are not currently required under the Act to accommodate childcare obligations. This, however, could change if the Act were to be amended to add family status as a prohibited ground.