Changing rules around elder care requirements have left employers walking a fine line, with increasing numbers of staff expected to seek accommodations in future.
In a surprise ruling last year, the Human Rights Tribunal of Ontario said that family status discrimination - including child care and elder care - should be treated the same as other forms of discrimination.
However, a legal expert says the care arrangement still needs to be a necessity, and not just a nice-to-have.
“The employer can say ‘can you please explain to me the nature of the responsibility?’. If the response is ‘well, my mother likes to attend swimming lessons on Wednesday nights’, then that’s likely not an elder care responsibility that would be protected by family status obligations. It really needs to be what I’ll call ‘necessary’,” says Filion Wakely Thorup Angeletti partner Meaghen Russell.
While the necessity of child care is reasonably well-defined, there’s still uncertainty about the exact test for elder care responsibility, she says.
“If your daycare closes at 6 o’clock and you have to be there by 5.30pm, otherwise there’s no one there for your child, that’s a clear-cut responsibility,” Russell says.
But, she says, “if you have an elderly parent at home that requires supervision – is that in relation to a medical issue or in relation to the preference of the person that they be there?
“The employer really needs to delve into and ask appropriate questions to extract this type of information from the employee to determine the nature of the responsibility.”
Simply saying “I have to take care of my mum or dad” is not sufficient.
Employers can seek further information about the nature of the eldercare responsibility, the reason behind the requested accommodation, and for medical and other documentation.
Russell cautions that if employers get unclear or unsatisfactory information, they should ask further questions, and keep documentation of the request and any information related to it.
Meaghen Russell will speak on accommodation, elder care and family status at the Employment Law Masterclass
on September 25.
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All in the family: HR’s guide to family status
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