Back to school and family status accommodation

Global Publication October 2016

Now that the school year is in full swing, family and childcare responsibilities have increased. This is a good time for employers to prepare for family status accommodation requests.

Under the Ontario Human Rights Code (the Code), employers, unions, landlords and service providers have a duty to accommodate based on a person’s family status. According to the Code, “family status” is defined as “being in a parent and child relationship.” The definition also includes parent and child “type” relationships that are based on care, responsibility and commitment.

In 2014, the Federal Court of Appeal upheld findings of discrimination on the basis of family status in two cases: Canadian National Railway Company v Seeley and Canada (Attorney General) v Johnstone. Both cases involved mothers who requested accommodation from a work schedule or an assignment that would have left their children without sufficient childcare. The Federal Court of Appeal affirmed the Canadian Human Rights Tribunal’s decisions that the employers had failed to search for reasonable solutions for their respective employees as part of their duty to accommodate. However, the court indicated that employers are only required to consider requests for accommodation for legally required family care. Thus, requests to leave work early to take one’s children to extra-curricular activities will not usually give rise to a legal duty to accommodate.

Accommodation is a shared responsibility and employees also have an obligation to pursue reasonable solutions. However, the duty to accommodate requires that an employer conduct a thorough examination of the individual’s circumstances. As an employer, the following steps are recommended concerning family status accommodation requests:

  • consider all requests for accommodation in good faith;
  • only request information that is needed and keep it confidential;
  • avoid jumping to conclusions or rushing to a solution;
  • document all communication and records;
  • request that the employee provide the employer with information about all efforts she/he has made to reconcile the competing work and family obligations; and
  • follow up and manage the communication concerning the accommodation.

When in doubt, it’s best to ask questions and assess all the options before coming to a decision. Your legal requirements may surprise you.

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