In Ontario, an employer is required to accommodate its employees who have family obligations if certain factors are met or exist. The employer’s duty to accommodate is based on its obligation not to discriminate based on the ground of “family status” and applies to any employee who has children, elderly parents, or relatives under their primary care.
In order to establish that your employer has a duty to accommodate you based on your family obligations, you must establish:
- That a rule or policy implemented by your employer is discriminatory. For the Court to find that it is discriminatory, the rule or policy must result in a real disadvantage to the parent/child (or dependant) relationship and the responsibilities that flow from that relationship, and/or to the employee’s work. For example, a policy regarding work hours which requires you to work night shifts when you do not have childcare assistance instead of during the day when your children are at school may be found to be discriminatory.
- Once the discriminatory practice or policy is established, the employer is required to demonstrate that it took all reasonable steps to accommodate the employee (to the point of “undue hardship”). For example, the employer could allow employees with childcare obligations to have a flexible work schedule. To establish ‘undue hardship”, the employer must demonstrate that the requested accommodation would impose an unreasonable burden on the employer in that it would pose significant issues in the workplace (including financial hardship for the employer).
Although the current case law does not outline a consistent test for establishing discrimination and an employer’s duty to accommodate, it is clear that the employer and the employee are required to work together to find a suitable solution. An employee who fails to participate in finding suitable alternatives will be judged severely by the Tribunal and the employer will likely succeed in demonstrating that it took reasonable measures to attempt to meet the employee’s accommodation requests.
With this in mind, an employee who requires accommodation on family status grounds should:
- Communicate their situation and their family-related accommodation needs to their employer (such as their unavailability to work at night);
- Work with the employer in the accommodation process to find acceptable solutions (such as allowing the employee to have a flexible work schedule);
- Provide sufficient information to the employer regarding the family-related needs;
- Accept reasonable accommodations that the employer offers; and
- Seek the assistance of an employment lawyer if the employer does not offer accommodations or if you are faced with termination (or resignation) as a result of the employer’s refusal to accommodate.
An employer should:
- Work with the employee in the accommodation process to find reasonable and mutually acceptable solutions to the issue;
- Be flexible with employees who require accommodations for family-related obligations;
- Limit the request for information (relating to the employee’s family-related needs) to what is absolutely required to determine the accommodation needs in order to protect the employee’s right to privacy;
- Present all reasonable accommodations to the employee in good faith;
- Document all efforts made regarding the employee’s accommodation needs, including the rejection of all reasonable offers;
- Provide reasons to the employee when you are unable to provide accommodations; and
- Seek the assistance of an employment lawyer if the employer’s accommodation related duties are unclear or unreasonable.
Whether you are an employee requiring accommodations or faced with termination (or resignation because of the employer’s failure to accommodate), or you are an employer who is unsure about its duty to accommodate, at Lister-Beaupré we are here to help.
Contact us today if you have any questions at 613-234-2500.