Do employers have to accommodate working parents?

Balancing work and childcare obligations. Stock photo by Getty Images

Teacher strikes seem to be an increasingly common occurrence. They struck last year in British Columbia, with a strike stretching from mid-June to mid-September. And this year, they’ve been rolling out in Ontario, starting with secondary schools and, more recently, elementary ones.

So what does this mean for employee accommodation when it comes to parents with kids?

Recent court decisions suggest employers could be on the hook more so than in the past.

“We’re seeing a change, let’s say an evolution, in our society that’s making the needs of the family more interwoven into the fabric of society, so that the workplace is needing to accept and bend the rules a bit more than it used to,” said Nancy Shapiro, a partner at Koskie Minsky in Toronto.

Employers will have to step up more, according to Robin Gage, a partner at Underhill Gage Litigation in Victoria.

“New case law certainly will put a bit more onus on them to at least really take the steps to consider what is going to be possible, and being proactive in that respect — if you have some ideas before employees start coming to you and asking you, then that will help so you’re not reacting so much.”

When it comes to the protected ground of family status under the Canadian Human Rights Act, the 2014 Federal Court of Appeal case Canada (Attorney General) v. Johnstone is now being interpreted and accepted at a provincial level, said Shapiro.

“So workplaces pretty much across Canada will need to deal with the issue of family status accommodation for a parent-child relationship, most definitely.”

That case concerned an employee seeking accommodation for her work schedule at an airport. The employer refused to accommodate workers with childcare obligations on the basis it had no legal duty to do so. However, the court disagreed. 

“Without reasonable accommodation for parents’ childcare obligations, many parents will be impeded from fully participating in the workforce so as to make for themselves the lives they are able and wish to have,” said Justice Robert Mainville. 

In advancing such a claim, the court said a worker must show:

  • A child is under his care and supervision.
  • The childcare obligation engages his legal responsibility for that child, as opposed to personal choice.
  • He has made reasonable efforts to meet childcare obligations through reasonable alternative solutions and no such alternative solution is reasonably accessible.
  • The impugned workplace rule interferes with the fulfillment of the childcare obligation in a way that is more than trivial or insubstantial.

It’s all about showing you’ve made reasonable efforts around childcare, said Shapiro.

“They have to come to the employer and talk and dialogue about everything they’ve done to try to accommodate the needs of their family and to satisfy a third party — who might hear such a case at some point in time — that they’ve done everything that would be reasonable to find an alternate solution. So it’s an individual thing — it’s not going to be that every parent who’s impacted by the strike will suddenly be able to take (time) off work… that wouldn’t be an automatic solution.”

The old test, requiring a change in the working conditions or rules, was hard to meet, according to Sarah Molyneaux, a lawyer at McMahon Morrison Watts in Toronto.

“This is a change to your responsibility, it’s not a change to the rule, so I’m not sure how the old test would have interpreted accommodating parents during a strike. But I think the new test definitely captures those parents.”

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