By Amanda Nash
More employees are struggling to meet the competing demands of their employers and of their families—a challenge COVID-19 has heightened. The result is more family status discrimination claims and accommodation requests. Yet the legal test for family status discrimination remains a moving target, and will likely evolve with COVID-related requests. Here are the answers to five frequently asked questions about family status discrimination and accommodation in employment.
1. What’s “family status”?
“Family status” is a protected ground under human rights laws of all Canadian provinces and territories and federally. Some don’t define “family status”; those that do vary, so look to the applicable human rights laws for specific definitions when developing policies and making decisions about accommodations. The Newfoundland and Labrador law defines “family status” as “the status of being in a parent and child relationship and . . . ‘child’ includes a stepchild and an adopted child and ‘parent’ includes a step-parent and an adoptive parent.”
2. What does family status protect?
This is a developing area, so the scope of the protection is evolving. However, it’s clear it protects against discrimination based on both a parent’s obligations to their child, and a child’s obligations to their parent.
3. What’s the test for family status discrimination?
The discrimination test is consistent across Canada in many human rights areas—but not in the area of family status. Courts and adjudicators have taken differing approaches, resulting in uncertainty for employers. Some tests are specific to child care obligations; others are general. The tests also differ in the degree to which the employment condition must interfere with the parental or family duty or obligation, and whether and when the employee’s own efforts to meet their obligations is considered. In the context of COVID-19, however, the requirement to work from home to comply with government directives or fulfill occupational health and safety obligations, coupled with school and daycare closures, likely triggered the employer’s duty to accommodate an employee’s childcare obligations while working from home, under any of the legal tests.
4. What’s the penalty for discriminating on the basis of “family status”?
Human rights tribunals remedy discrimination, and they have broad authority to fashion a solution to make the complainant employee “whole.” For example, they can order the employer to do one or all of: paying the employee to compensate for the distress and humiliation of being discriminated against and for any income loss resulting from it; stopping and rectifying the discriminatory conduct; and implementing training, policies, or procedures to address the discrimination.
5. How do employers accommodate “family status”?
Human rights laws prohibit discrimination based on “family status,” so employers have a duty to accommodate it to the point of “undue hardship”: take steps to offset the discriminatory impact of a workplace rule, policy, requirement, or practice by adjusting, revising, or eliminating it. These tips will help.
Accommodation requests arise from changes in an employee’s life and workplace changes. Where possible, give employees advance notice of workplace changes so they can adjust. Employees also have a duty to cooperate in the accommodation process, including sharing information so the employer can assess potential accommodations, and collaborating to find a reasonable (not a perfect) solution.
Consider each case individually. Creativity and flexibility are key. Practically, a flexible work arrangement is often a solution.
Accommodation is an ongoing process. The duty begins when an employer is, or should be, aware of the accommodation need, and that duty might evolve over time. It only ends when the employment relationship ends, or the employer can establish it has reached the point of undue hardship.
The “undue hardship” bar is high. Employers are expected to suffer some degree of hardship, but not an “undue” amount. The key factors relevant to quantifying the hardship are financial cost, disruption of a collective agreement, employee morale, workforce interchangeability, adaptability of facilities, and any safety risks and who bears them.
Keep thorough, accurate records of the accommodation process; an employee’s accommodation needs evolve, and records allow you to provide evidence in response to a human rights complaint if necessary.
To discuss this or any other legal issue, contact any member of McInnes Cooper’s Labour & Employment Law Team. Read more McInnes Cooper Legal Publications and subscribe to those relevant to your business.
This article is information only; it is not legal advice. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2020. All rights reserved.
Amanda Nash is a labour and employment lawyer in McInnes Cooper’s St. John’s office with a particular interest in advising and representing employers in grievance and interest arbitration, collective agreement interpretation, human rights, and employment termination issues.
Contact Amanda at firstname.lastname@example.org or 709.724.4709.