The panel found the employer failed to accommodate based on family status. (Photo: iStock)
Human rights law in Canada is pretty clear that if an employee has a disability, the employer has a duty to accommodate.
What if the person who is disabled isn’t the worker but a very close relative? Does the employer still have to accommodate the employee?
Turns out, yes, as found by The Northwest Territories Human Rights Adjudication Panel, ruling that the employer, indeed had a duty to accommodate.
The employee in this case is a mother who has a disabled child who was diagnosed with autism. The employer was aware that she had a special needs child and that she needed special accommodations to care for him.
The employer had accommodated her in the summer of 2011 and again in December of 2011 by giving her leave during her child’s school breaks.
However, when she requested to take leave for summer 2012 her request was met with resistance. She provided letters from two doctors about her son’s condition and his special needs, showing that her leave to be with her son would be “medically merited.” However, the employer rejected the medical notes because it didn’t establish her own medical need.
The employee rejected the employer’s request to work on evenings and weekends, because of the hardship it would cause her and her son.
They couldn’t come to an agreement and she resigned from her position after which she filed a discrimination complaint on the basis of family status against her employer.
The panel in this case found that the employer was wrong for several reasons. The employee was the primary caregiver for a child that had “significant childcare needs,” and she was legally obligated to provide her child with all his needs, including special needs.
An employer has a duty to accommodate to the point of undue hardship. The panel found that in this case the employer had no interest in understanding the childcare issues and “failed to appreciate the legitimate reasons for the complainant’s rejection of its proposed schedules”.
The panel also found that it would not have been an undue hardship to train another employee to substitute for her for the summer.
Accordingly, the panel found the employer failed to accommodate based on family status and ordered the employer and employee to indicate their availability to make submissions as how to resolve this dispute within 30 days.