HOW FAR DOES EMPLOYER HAVE TO GO TO ACCOMMODATE CHILD CARE
So just how far does an employer have to go to accommodate the child care obligations of employees?
The Ontario Human Rights Code prohibits discrimination on the basis of “family status”. Don’t let the word “status” fool you. Court decisions make it clear that term can be interpreted to include specific and individual family relationships. While the Code further defines “family status” as meaning the status of being in a parent and child relationship, the specific and particular needs of the child may be relevant.
In a recent British Columbia case, a woman with a 12-year-old child who suffered from Attention Deficit Disorder and Tourette’s Syndrome had significant child care responsibilities. After she finished her 8:30 to 3:30 shift at work every day, she would pick the child up from school, insure that he ate properly and administer his medicines. This was a high needs child who needed almost constant individual attention.
The mother was a good worker and a committed employee. When the employer changed her working hours from 11:30 a.m. to 6 p.m., she gave it a try for two weeks. She relied upon her mother for the after-school care issues. It didn’t work.
When all of this was explained to the employer, along with a pediatrician’s letter indicating that the employee had a “very high needs child, with a major psychiatric diagnosis”, the employer refused to budge. The mother filed a complaint under the British Columbia Human Rights Code alleging discrimination on the basis of family status. She won.
The British Columbia Court of Appeal found that if a condition of employment imposed by an employer results in a serious interference with a substantial parental or family duty, discrimination may be found in violation of the Code.
This is virtually the only decision of its kind in Canada. But the reality is that the decision is foreshadowing what the future holds for all provinces.
It is unlikely that discrimination would have been found if the child in this case did not have significant disabilities and special needs as a result. This will not open the door to parents on rotating shifts demanding straight days to accommodate normal child care arrangements. Nor will it likely mean that parents of children with special needs can suddenly demand that their long-established work hours be changed. Remember that in this case, it was the employer who suddenly changed the work hours.
I predict that within five years or so, it will mean that employers will have to accommodate, to some extent, the time off required by parents of children with medical needs to attend numerous doctors’ appointments or to take extended leaves of absence to care for a sick child. It all depends upon how human rights commissions interpret what a substantial duty is and what constitutes a serious interference with a parental duty. Those are pretty loose terms.
It’s important to note, however, that even employees without special needs children have some rights when it comes to the changes in their hours. If an employer, without notice, changes the hours of work of a primary caregiver and that change interferes with child care obligations, the employee may claim a constructive dismissal. He or she may take the position that they have been fired, without anyone saying the words, by this big change without notice. Although they will not have a human rights complaint, a wrongful dismissal complaint in the courts may follow.
Employers, regardless of the law, often do what they can to accommodate family obligations. Keeping good employees is increasingly dependant employers being as flexible as possible.
As published in the Hamilton Spectator, June 25, 2005