Accommodation is often a complex and challenging subject for employers to navigate. In Ontario, every person has the right to equal treatment in employment without discrimination based on protected grounds under the Ontario Human Rights Code (the “Code”). Accordingly, employers have an obligation to accommodate employees who are prevented from performing their duties and responsibilities as a result of a prohibited ground.
Employers have a duty to accommodate to the point of undue hardship. Accommodation offered does not have to be perfect, and it does not have to be exactly what the employee has asked for, but it does have to be reasonable. However, employers often find it difficult to determine which accommodations are reasonable when faced with requests based on grounds which they are not accustomed to accommodating, or which require them to balance potentially competing legal obligations. What constitutes reasonable accommodation is a case-by-case assessment. Similarly, the undue hardship assessment considers different factors in different provinces. However, health and safety requirements are always key considerations.
Generally, the term “accommodation” in the workplace context leads employers to think of disability-related limitations. However, family status is a protected ground that has been receiving increasing attention from legal decision-makers. The Town of Ajax v Ajax Professional Fire Fighters Association Local 1092 [Ajax], a 2019 Ontario arbitration decision, helpfully clarifies what may constitute family-status discrimination and the extent to which employers must take employees’ childcare obligations into account while accommodating other limitations.
The duty to accommodate has both a procedural and a substantive component. Procedurally, employers must obtain all relevant information and take appropriate steps to assess an employee’s needs. Substantively, employers must implement the actual accommodation in a timely manner, subject to undue hardship.
In Ajax, a firefighter filed a grievance alleging that the Town of Ajax violated the Code by assigning her to the day shift while accommodating her pregnancy, rather than allowing her to continue on her regular 24-hour shift.
In Ajax, firefighters perform both emergency and non-emergency duties during their 24-hour shifts. Firefighters perform about 90% of their non-emergency duties during the day and primarily respond to emergencies at night. Notably, the Town must always maintain a minimum complement of firefighters for responding to emergencies.
After discovering that she was pregnant, the greivor gave the Town a doctor’s note stating that she needed to be “off truck due to pregnancy” because she was unable to respond to emergencies due to the potential risk of harm to her unborn baby. The Town’s policy was that firefighters who cannot respond to emergencies for an extended period are to be accommodated with modified duties on the day shift. However, the grievor requested to remain on the 24-hour shift in order to maintain her existing daycare arrangements, which offered flexible part-time childcare that allowed her and her husband, who was also a firefighter and worked on opposite shifts from the grievor, to maximize time with their son.
The Town asked the firefighter to contact twenty daycares to inquire about availability. The grievor reported that three daycares had availability, but that they were not ideal because they did not offer flexible part-time care that would work with the day-shift schedule. Nonetheless, the Town concluded that childcare was not an issue in accommodating the greivor because she indicated that full-time daycare was available. Consequently, the Town accommodated the grievor by assigning her modified duties during the day shift, which she subsequently grieved.
On behalf of the greivor, the Ajax Professional Firefighters Association (the “Association”) submitted that the Town had failed to properly accommodate her pregnancy-related limitations, thereby discriminating against her on the basis of sex, because “an accommodation provided to address one discriminatory impact cannot be reasonable if it results in a discriminatory impact on a different ground”. In particular, the Association argued that the Town failed to properly consider the grievor’s request to be accommodated on-shift and discriminated against her on the basis of family status by assigning her to the day shift. The Town, on the other hand, submitted that it provided the grievor with reasonable accommodation and that employees must accept reasonable accommodation, even if they would prefer to be accommodated differently. Specifically, the Town argued that the grievor’s desire to have her son continue in his existing daycare was a preference rather than a need, and that there was no meaningful work for her to perform during the night if she stayed on the 24-hour shift.
The arbitrator found that the Town had provided the grievor with reasonable accommodation in the circumstances, and dismissed the grievance. The arbitrator noted that there was no dispute that the Code obliged the Town to accommodate the grievor’s pregnancy. Further, the arbitrator found that the Town fulfilled the procedural aspect of its duty to accommodate because it seriously considered all relevant circumstances in determining how to accommodate the greivor, including her childcare obligations and the availability of daycare. The arbitrator also found that the Town fulfilled its substantive duty to accommodate by assigning the grievor modified duties on the day shift that were consistent with her limitations. Moreover, the arbitrator found that it was reasonable for the Town to assign the grievor to the day shift because she could not respond to emergencies, there was no meaningful work for her to perform at night, she could not be part of the minimum complement, and it did not constitute discrimination based on family status in the circumstances. The arbitrator found that no accommodation would have allowed the grievor to fulfill the essential duties of her firefighter position, and the grievor’s demand to stay on the 24-hour shift was effectively a demand for a “make-work” assignment, which the Code does not require employers to provide.
In concluding that there was no family status discrimination, the Arbitrator applied the Misetich test. The Misetich test was established by the Human Rights Tribunal of Ontario to replace a more restrictive test for family status discrimination developed by the Federal Court of Appeal. The test established by the Federal Court of Appeal required, among other factors, a demonstration that a legal obligation related to childcare is engaged, and that reasonable steps to self-accommodate have been taken prior to seeking accommodation from the employers.
Under the Misetich test, to constitute discrimination based on family status a workplace rule must constitute a “real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or the employee’s work”. The employee is not required to self-accommodate, as under the test established by the Federal Court of Appeal, but the impact of the workplace rule is assessed contextually, which may involve considering other supports available to the employee. In applying this test, the arbitrator found that the grievor did not suffer a real disadvantage because her childcare obligations “did not prevent her from attending work on a day shift schedule, and being scheduled on day shift did not prevent her from meeting her childcare obligations.” Thus, the arbitrator dismissed the grievance.
The Ajax decision provides employers with useful guidance on how far employers’ duty to accommodate extends, both with respect to accommodation based on family status, and accommodation more generally. First, Ajax sets out the principle that the duty to accommodate contains procedural and substantive components. Further, even if accommodation is required, employees must still be able to fulfill the essential duties of their roles. Employers need not provide employees with “make-work” assignments nor hire an additional employee to work alongside the accommodated employee to fulfill their duty to accommodate.
Ultimately, Ajax affirms the principle that accommodation does not have to be perfect, and it does not have to be the employee’s preferred accommodation. As long as the accommodation is reasonable—that is, as long as the accommodation meets the employee’s restrictions—the employer can accommodate in a way that best suits its operational requirements.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.