Williams HR Law LLP

Return to Work Case Studies from the Front Lines – Case Study #3

July 27, 2020

Family Status Accommodation: Adapting to the Evolving Nature of Caregiving Needs

As many businesses resume operations now that most of Ontario has entered Stage 3 of its reopening, and uncertainty around the full reopening of schools and the availability of childcare continues, one challenge that many employers are facing is requests for family status accommodation related to employees’ family care obligations.

In this third post of our blog series, Return to Work Case Studies from the Front Lines, we draw from our experiences working with employers “on the ground” to provide practical insights for organizations regarding family status accommodation. The following case study illustrates the duty to accommodate family caregiving needs, the limits of that duty, and how what constitutes “reasonable accommodation” can change as circumstances evolve.

As usual, the case study is based on a real-world situation with which we recently assisted a client. The details of the scenario have been adapted and anonymized.

The Scenario:

  • Early on in the pandemic, an office employee named Marie informed her employer that, due to her toddler’s daycare being closed, she would not be able to attend the centralized office because she needed to stay home to care for him.
  • The employer asked Marie for documentation proving that her child’s daycare was closed and asked if there were any other ways for her to meet her childcare obligations, such as by having a spouse or relative care for her child during the workday.
  • Unfortunately, there were no alternative childcare options available to Marie.
  • The employer reached out to us to canvass its options and obligations, and we advised it of its duty to accommodate limitations arising from the protected ground of family status under Ontario’s Human Rights Code [Code], which can include childcare obligations.
    • Accordingly, the employer accommodated Marie by allowing her to work from home so that she could meet her childcare obligations.
  • However, a few weeks later, it became apparent that there was very little meaningful work for Marie to do from home due to the nature of her job requiring her to mainly perform administrative duties in the centralized office setting.
  • The employer contacted us again, and we advised that its duty to provide reasonable accommodation does not require it to “make work”, and that an unpaid leave of absence may be the only reasonable accommodation in the circumstances.
    • Consequently, the employer accommodated Marie by placing her on an unpaid leave of absence.
  • Later, the daycare reopened, but Marie advised that, despite the daycare reopening with strict health and safety measures in place, she did not feel ready to send her child back to daycare.
    • The employer inquired as to whether Marie’s child might have any sort of condition that may place him at an elevated risk for contracting COVID-19.
    • Marie stated that her child was not particularly vulnerable, but that she would prefer to wait for the pandemic to subside before returning her child to daycare.
  • We advised the employer that it had fulfilled its duty to accommodate and could require Marie to return to working in the office, given that there was adequate childcare available to meet her caregiving needs and no particular health condition making her child more vulnerable to contracting COVID-19.
  • On our advice, the employer communicated to Marie that she was now required to return to the centralized office, which she did.
How the Employer Met its Legal Obligations How the Employer Could Have Exposed Itself to Liability
  • Asked for documentation of the daycare closure and about whether alternative childcare options were available to the employee, to verify that her childcare obligations limited her ability to perform her job
  • Sought legal advice on its obligations, and consequently learned of its duty to accommodate limitations arising from the protected ground of family status
  • Provided reasonable accommodation to the employee in a timely manner by allowing her to work from home when possible
  • Sought further legal advice once it became apparent that continuing the work-from-home arrangement was not feasible
  • Carefully considered a leave of absence as a form of accommodation reasonable in the circumstances
  • Continuously assessed the employee’s accommodation needs in the circumstances
  • Sought legal counsel to confirm that it had fulfilled its duty to accommodate before requiring the employee to return to work in the office
  • Had the employer incorrectly assumed the employee had other childcare options or not been aware of its obligation to accommodate family status limitations and disciplined or dismissed the employee, it could have faced substantial liability for discrimination on the basis of family status
  • Had the employer failed to inquire as to whether the child was at an elevated risk of contracting COVID-19 when the employee expressed hesitation to return him to daycare, it could have unreasonably expected the employee to return her child to daycare and exposed itself to significant liability

Key Considerations and Takeaways:

In Ontario, employers have an obligation to accommodate employees who have limits upon their ability to perform their duties and responsibilities as a result of a protected ground under the Code. While many employers are aware of the duty to accommodate in the context of an employee’s disability, many do not know that this duty also applies to family status-based caregiving needs, including childcare, eldercare, and other parent-child relationships.

In responding to such an accommodation request, employers should:

  • seek reasonable evidence to verify the employee’s need for accommodation; and
  • always evaluate such requests in good faith and make the necessary inquiries before determining whether accommodation is necessary.

A few aspects of the duty to accommodate that employers should bear in mind include:

  • the duty contains both a procedural and a substantive component;
    • procedurally, an employer must obtain all relevant information and take appropriate steps to assess an employee’s needs;
    • substantively, an employer must implement accommodation that is reasonable in the circumstances, in a timely manner;
  • the duty to accommodate only requires employers to provide reasonable accommodation – not perfect accommodation;
    • what constitutes reasonable accommodation is not necessarily the employee’s preferred form of accommodation;
  • an employer is not obligated to provide accommodations that cause it to suffer “undue hardship”;
    • while the threshold for undue hardship is high, employers must still fulfill their procedural duty to assess the employee’s needs and try to offer reasonable accommodation where it would not amount to undue hardship;
  • the accommodation process is contextual and highly fact-specific, and employers must be flexible as circumstances change; and
  • changes to accommodation must be carefully undertaken with appropriate legal advice.

In this case, the employer met both its procedural and substantive duties by inquiring into Marie’s childcare obligation needs and providing reasonable accommodations in the form of work from home and later an unpaid leave of absence. Notably, the employer was flexible in adjusting the form of accommodation provided as the circumstances changed. The employer also sought legal advice before determining that it was reasonable to put Marie on a leave of absence when there was no meaningful work for her to do from home, and before requiring her to return to work once daycare was available.

In the current context of pandemic recovery, employers should be aware that the relatively limited capacity of childcare centres means that many employees may not have access to childcare spaces that were available prior to COVID-19. Employers will generally still have a duty to accommodate employees who have childcare obligations and do not have reasonable alternative childcare arrangements available to them. Employers should be cautious not to penalize employees who may have legitimate childcare and/or eldercare obligations that limit their ability to perform the duties of their job.

Generally, employees who are able to return their children to daycare centres that have adequate health and safety precautions in place but choose not to do so will no longer be entitled to accommodation on the basis of family status. However, this does not necessarily mean an employer can automatically require all employees in such circumstances to return to work, as the employees’ concerns about returning their children to daycare may be related to other protected grounds, such as a mental health disability. Accordingly, employers should seek legal advice from counsel to ensure that they do not unintentionally discriminate against employees requiring accommodation. By doing so, employers will avoid facing substantial liability and the serious reputational harm that often result from discrimination, even if it is unintentional.

This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.