As a follow up to our February 2014 edition of the “In the Know” newsletter, on May 2, 2014, the Federal Court of Appeal issued a decision in A.G. Canada v. Johnstone (“Johnstone”). This case is the most recent in a line of decisions on the topic of family status accommodation. Williams HR Law has been following this case as it has made its way through the court system and we are highlighting it in this e-bulletin because it is significant. Although this case was brought under the Federal legislation, the Canadian Human Rights Act (the “Act”), the principles of law are transferrable to the individual provincial human rights contexts, including Ontario, and this case should be viewed as the leading authority on the protected ground of family status with respect to child care obligations. This case may also be applicable in the eldercare context which is becoming more relevant as the workforce ages. The accommodation principles and analysis will likely be similar as the case law in this area continues to develop.
As is the case with all accommodation issues, the individual facts of each case must be taken into account from the beginning. It is wise to be proactive and consider these issues as soon as you have a suspicion that an employee may require accommodation. This is because the courts have said that once an employee raises these concerns to the employer, even without a formal accommodation request, the accommodation process is triggered and the employer must make a meaningful attempt to inquire if any accommodation requirements exist.
The Johnstone case has provided some guidance in this area through a test which, to some degree, clarifies the nature of the family obligations and the circumstances where an employer must accommodate.
The test is:
- The employee must have a child under care;
- The issue involves their legal duty to the child (i.e. obligation not to neglect a child, or leave a child unattended) and not a personal choice (like soccer practice or dance);
- The employee must have exhausted their own reasonable efforts to solve the issue and no such solution is reasonably accessible; and
- The workplace standard substantially interferes with the person’s ability to satisfy the legal obligation to the child under care (i.e. being a few minutes late to pick up a child from daycare once in a while would not trigger the accommodation obligation).
The court has said that if all of the above factors are met, the employer must attempt to accommodate to the point of undue hardship. However, the court has also made it clear that the primary obligation to balance workplace and childcare obligations falls to parents, who must work to exhaust all reasonable alternatives (i.e. childcare providers, family and others) to satisfy their childcare needs. For example, in the Johnstone case, Mrs. Johnstone had investigated numerous regulated and unregulated childcare providers, but because both she and her husband worked for the same agency with equally unpredictable work schedules, no one could provide child care.
This is a good reminder for employers to revisit their accommodation policies and consider how family status accommodations will be handled. As always, we recommend taking a good faith, flexible and informed approach to accommodation which enables you to foster productive workplace relationships and may help you to recruit and retain top talent.
The Attorney General of Canada could appeal to the Supreme Court of Canada. We will monitor this case going forward and provide you with updates on this developing area of the law.
This blog is provided as information and a summary of workplace legal issues.
This information is not intended as legal advice.