Legal Eye: accommodate consistently or risk a lawsuit

Legal Eye: accommodate consistently or risk a lawsuit

Legal Eye: accommodate consistently or risk a lawsuit

Where does the requirement to accommodate end? In typical legal fashion the answer appears to be “It depends”, but a new case from the Federal Court shows that family status is just as important as other protected grounds.

When Canadian Border Services Agency employee Fiona Johnstone returned to work after her first maternity leave she requested fixed day shifts to allow her to arrange reliable childcare for her infant. was a mother of two whose husband also worked for the agency. The agency’s policy restricted full-time employees from working fixed day shifts, so denied her request, and refused a number of compromises she proposed.

The problem for the agency arose because it had already made concessions for other employees on the basis of religious or medical requirements, but refused Johnstone’s application despite similar protected grounds. The Tribunal held that the Agency had discriminated against Johnstone on the basis of family status and that the Agency had not accommodated her to the point of undue hardship.

One of the key points rested on what counted as “substantial” family obligations, Miller Thomson employment lawyer Erik Marshall said. Things like food, shelter, healthcare and safety would count, but attending school plays or sports events probably wouldn’t. A complication for employers is that the outcome will depend on the exact facts of each situation.

“The key thing is to really every time a request for accommodation is received as many details about that request ought to be canvassed, what options the employee has considered and take a second look at the workplace rule or condition to determine if that really is an absolute inflexible rule or condition. If accommodations have been made in the past for other reasons it should be in the new case as well,” Marshall said.

An employee with family in the area is in a different situation than one who migrated there, and the court discussed the fact that some areas have more childcare options than others so in a company with multiple locations the different traits of the region must be considered.

It isn’t just about children either, elder care is becoming increasingly relevant for employers.

“With baby boomers entering the elder years I think this is going to be the new frontier in terms of family status obligations that employers are faced with,” Marshall said. “ It’s certainly coming up and will see more in the future.”