Employer’s Duty to Accommodate Child-Care Obligations

Headlines were made when the federal courts found in favour of a border services employee that alleged that she had been discriminated against on the basis of family status. Upon returning from maternity leave, the employee sought a fixed work schedule rather than normal rotating shifts in order to care for her child. Importantly, the employee’s husband was also a border services employee with a rotating shift schedule, which added to the difficulty for them in obtaining childcare. The employer maintained that only a part-time employee could obtain such a schedule (and the benefits that came along with that) and her request was denied, which was the source of the employee’s complaint.

The Federal Court of Appeal concluded that family status discrimination, where childcare obligations are implicated, could be established where the following elements were met:

• a child is under the employee’s care and supervision;
• the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
• the employee has made reasonable efforts to meet those childcare obligations but no reasonable alternatives are reasonably accessible; and,
• the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

Note that this approach by the Federal Court is different from that which is used in BC. In BC, the leading case for determining family status discrimination requires that an employer’s change to a term or condition of employment resulted in a serious interference with a substantial parental or family duty or obligation of the employee. Use of the terms “substantial” and “serious interference” make the BC analysis more onerous for employees to prove family status discrimination.

Regardless of jurisdiction, employers should take all requests for workplace accommodation seriously, whether they be for disability or child care. The Federal Court of Appeal case was discussed here. The leading case in BC can be found here. A recent affirmation of the BC approach by the BC Court of Appeal can be found here.