A recent case in the Federal Court of Canada has nudged the door open a little further to more liberal rights for workers needing work accommodations to care for family members.
In the case a Border Services employee wanted to work a set shift that was complementary to her daycare arrangements. The employer did not offer such a shift. The employer argued that accommodating the employee would be a real hardship given that it services required staffing 24 hours a day and seven days a week.
The employer refused to accommodate saying that the compressed workweek and set shift would not be possible. However, (and this is likely the key to the case) the evidence was otherwise in that the employer had granted accommodation involving compressed workweeks and set shifts to other employees based on religious objection to working certain days.
It is notable that the employee had not made things easier upon herself. She had relocated to a much smaller town during her pregnancy and maternity leave making it more difficult for her to find daycare. In addition the employee suffered the additional hardship of having her husband also work graveyard shifts thus making it more difficult for him to assist with childcare.
The employer argued that the employee’s childcare issues resulted from personal choices surrounding her relocation and the fact that she happened to him to be married to someone who also had graveyard shifts. As reasonable as the argument would appear to be, it did not succeed. The argument might have been given more weight if the employer was truly unable to accommodate the employee’s request.
The unfortunate consequence of cases like this is that employees who are not suffering from a disability, have no religious restrictions, and have no family care responsibilities may end up with the least desirable shifts. We wonder about the line between necessity and convenience when it comes to available child care options.
We expect that issues concerning family status accommodation will become more frequent given demographics in Canada. The wave of baby boomers is coming into the age where they will require more and more care. Their care might involve demands on their children and grandchildren which will result in demands on employers for accommodation. Additionally, the days of stay-at-home parents are likely over thereby increasing the pressure on employers to provide accommodation for childcare.
Alf Kempf is the Chair of Pushor Mitchell’s Employment Law Group. He can be reached by phone at (250) 869-1215, or by email at [email protected].
