Family Obligations and the Workplace

The COVID-19 pandemic has significantly impacted working parents or employees with caring obligations for elderly relatives. Whether working from home or the workplace, many employees have to juggle caring challenges posed by the pandemic, such as intermittent daycare and school closures, with their work duties. For employers, this raises additional considerations about how to strike a balance between their employees' family needs with the needs of the workplace.

In our previous blog post, Mental Health in the Workplace and Accommodation, we discussed employers' and employees' rights and obligations relating to workplace accommodation for mental health. In this blog post, we explore when an employee may be entitled to accommodation based on family obligations as well as the extent of the employer's duty to accommodate in the context of COVID-19.

1. Family status is a human-rights protected ground

The starting point is that employees are entitled to equal treatment in the workplace without discrimination based on family status. Family status is defined by the Ontario Human Rights Code (the "Code") to mean the status of being in a parent and child relationship. However, this has been interpreted broadly to include anyone in a "parent type relationship", including non-biological parent and child relationships, individuals providing eldercare for aging parents, and other relationships of care, responsibility, and commitment that resemble a parent-child relationship.

2. Discrimination based on family status

Although the definition of family status is broad, simply being in a parent type relationship does not automatically entitle an employee to have all of their family needs accommodated. In order to establish a need for accommodation based on family status, the employee has to do more than establish the workplace rule or requirement has a negative impact on a family need. Rather, the negative impact must result in a real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship and/or to the employee's work. This must be assessed contextually.

Generally, the more significant the caring obligation, and the more serious the interference of the rule, the more likely it will result in a real disadvantage. For example, in the recent case of Espinoa v. The Napanee Beaver Limited, 2021 HRTO 68 the employer was found to have discriminated against an employee by failing to engage in the accommodation process after the employee informed the employer that she did not have fulltime daycare for her twin infant daughters and needed a modified schedule. On the other hand, in the case of Misetich v. Value Village Stores Inc. 2016 HRTO 1229, the employer's requirement that the employee work days, evenings and/or weekends was found to not be discriminatory, as the employee could work an evening shift and still fulfil her obligation to provide an evening meal to her elderly mother, where required.

Given the unique caring challenges posed by the COVID-19 pandemic, it is critical that a case by cases approach be adopted to determining whether a workplace rule or requirement disadvantages an employee based on their caring obligations. The negative impact may be time or circumstance specific, but nevertheless result in a real disadvantage. For example, an employee with school aged children may normally be able to work from 8am-4pm without issue. However, if one of the employee's children must stay home due to COVID-19 symptoms, it may not be feasible for the employee to work those hours uninterrupted. In that scenario, it may result in a real disadvantage if the employee is nevertheless required to work those hours while their child is at home.

3. Accommodation of family status

Once an employee has established that a workplace rule or requirement disadvantages them due to family status, the duty to accommodate is triggered.

The duty to accommodate is a cooperate and collaborative process. The employee is responsible for requesting the accommodation and cooperating in the accommodation process, including providing the employer with sufficient information relating to the family-related needs and working with the employer to find possible solutions. The employer must then take steps to implement appropriate accommodation. In determining suitable accommodation, the employer is not required to do more than is necessary to meet the employee's family related needs. For example, the employee who is not able to work their normal hours while their little one is home due to COVID-19 symptoms need not be provided with paid time off if rescheduling their work hours would allow the employee to fulfill both their caring obligations and their work duties.

The most appropriate accommodation will depend on the circumstances, including the unique needs of the employee and the nature of the workplace. In the context of COVID-19, employers and employees alike should be prepared to be flexible in considering appropriate accommodation measures. It may be the case that the employee only requires accommodation for a short period of time, for example, while caring for a family member with COVID-19. Alternatively, an employee may need longer-term accommodation if, for example, their child is unable to attend in-person school due to a condition which puts them at higher risk for severe COVID-19.

Employers are only required to accommodate employees to the point of undue hardship. Accommodations do not have to be provided if it would cause the employer to suffer excessive hardship. The relevant factors to assessing whether an accommodation measure would result in undue hardship are:

• Cost;
• Outside sources of funding, if any; and
• Health and safety requirements, if any.

Takeaways

Employees with caring obligations may be entitled to accommodation of their family needs. However, the appropriate accommodation measures, if any, will largely depends on the employee's unique circumstances as well as the nature of the workplace. Employers and employees are encouraged to adopt a flexible approach to accommodation that takes account of the caring challenges posed by the pandemic and the differing degrees of impact it may have on employees.

Lee Workplace Law would be happy to answer any questions you may have about your workplace rights and obligations.