This publication has been updated as of August 28, 2020.

An increasing number of employees are struggling to meet the challenge of the competing demands of their employers and those of their families – a challenge the 2020 COVID-19 Pandemic has only heightened. This growing challenge has resulted in an increase in family status accommodation requests and discrimination claims. For years, courts and arbitrators have been forced to balance the needs of employees against freedom of contract and the needs of employers. Yet the legal test for family status discrimination in employment remains a moving target, and will likely evolve significantly in light of COVID- related requests. To help employers cope with employees’ increasing family status accommodation requests, here are the answers to five of employers’ most frequently asked questions about workplace discrimination and accommodation on the basis of family status.

The Work-Family Challenge

Two key factors have contributed to the increase in the number of employees seeking accommodation on the basis of family status:

The 2020 COVID-19 Pandemic. Perhaps no other single event in recent history has changed – and will continue to change – the workplace more than the COVID-19 Pandemic. According to Statistics Canada:

• At the end of May 2020 (the height of pandemic lockdowns), 32.6% of Canadians were working remotely – almost two times the pre-pandemic number. With schools and daycares closed, this often meant multiple parents working from home, many with children of all ages at home, some engaging in on-line schooling. All at the same time. In July 2020, almost 25% of Canadian businesses said they expected 10% or more of their workforce to continue to work remotely post-pandemic; 25% of Canadian businesses said they would likely or very likely offer employees the option to work remotely post-pandemic, and 14% are likely or very likely to require it.

• The re-opening of workplaces, daycares and schools won’t eliminate the challenges COVID-19 poses to working parents and their employers. Some daycares didn’t survive the Pandemic at all or have reduced capacity, leaving some parents without access to childcare or subject to rigid scheduled drop off and pick up times, no early or late drop offs or pick ups, the requirement that the same person do both, or facing reduced hours to deal with operating in the COVID context. Some schools, such as in New Brunswick, will implement a combination of in-school and remote learning, some requiring parental support. Similarly, some provinces or school districts, such as in Newfoundland & Labrador, require parents to transport their children to and from school to ensure social distancing on busses.

• Going forward, employees may: continue to need to work from home because they or a family member is highly susceptible to COVID; need to deal with a child unable to attend daycare or school because they are symptomatic or there’s a daycare or school outbreak or exposure; or need to care for another family member who’s ill.

The Sandwich Generation. Even before COVID-19, more employees were finding themselves in the “sandwich generation”, squeezed between childcare on one side, and eldercare on the other:

• In 2014, 69% of couple families with at least one child under 16 were dual-earner families, with both parents working full-time in almost 75% of them (versus 36% in 1976). In 2015, 25% of couples with at least one child under six, and 37% with a youngest child aged six to 17, had two parents working full time. In 2014, the number of lone-parent families with children had increased exponentially, from 289,000 in 1976 to 698,000 in 2014, and 20% (versus 9% in 1976) of families with children younger than 16 were lone-parent families. In 2011, Stats Canada noted: “[t]he presence of preschool-age children exerts a strong influence on work absences for personal or family responsibilities. In 2011, full-time employees in families with at least one preschool-age child lost an average of 3.0 days, compared with only 1.4 for those in families without children.”

• In 2018, approximately 25% of Canadians aged 15 and older (7.8 million people, 54% of whom were women) provided care to a family member or friend with a long-term health condition, disability or age-related problems. Nearly half (47%) cared primarily for their parents or parents-in-law, and over a third (36%) spent 10 hours or more on these caregiving responsibilities. Between 2011 and 2016, Canada experienced the largest increase in the proportion of seniors since 1867; by 2016, 16.9% of the Canadian population was aged 65 and over.

5 Employer “Family Status” Discrimination & Accommodation FAQs

The impact of – and the response to – the growing work-family challenge is borne by both employees and their employers. Here are the answers to five of employers’ most frequently asked questions about workplace discrimination and accommodation on the basis of family status.

1. What is “family status”?

“Family status” is a protected ground under human rights laws of all Canadian provinces and territories (N.B. added “family status”, as well as “gender identity or expression”, as a protected ground under the N.B. Human Rights Act in May 2017; Québec’s “civil status” encompasses any form of family ties or affinity with another person) and federally. However, some don’t define “family status” at all. When they do, the definition varies (between provinces for provincially-regulated employers, and federally for federally-regulated employers). For example, human rights legislation in P.E.I. and Ontario define “family status” as, “the status of being in a parent and child relationship”; that of N.L. defines it expansively as, “the status of being in a parent and child relationship and … “child” includes a stepchild and an adopted child and “parent” includes a step-parent and an adoptive parent”. Employers should look to the specific human rights laws in the provinces in which they operate (or federally) for the specific requirements when developing policies and making decisions regarding accommodation.

2. What does the “family status” ground protect?

This is a developing area, so the scope of the protection of “family status” is evolving. However, it seems clear it includes the protection of both childcare and eldercare obligations:

Childcare Obligations. Courts and arbitrators have confirmed that the prohibited ground of discrimination based on “family status” includes discrimination based on a parent’s childcare obligations, so an employer is prohibited from discriminating against an employee based on their childcare obligations.

Parent or “Eldercare” Obligations.  Similarly, those decisions dealing with “family status” discrimination in the context of eldercare confirm that care of a parent is also protected under “family status”.

How a Family is Formed. Human rights legislation doesn’t necessarily make what constitutes a “parent” clear, and thus whether “family status” under human rights legislation includes how someone became a parent. However, at least one decision suggests it does. In Adekayode v. Halifax (Regional Municipality), a collective agreement gave adoptive, but not biological, parents a top-up when they went on parental leave. The employee, a biological parent, was denied top-up benefits and lodged a human rights complaint alleging discrimination on the basis of family status. The N.S. Human Rights Commission Board of Inquiry agreed, deciding “family status” under N.S. human rights legislation includes the nature of the parent/child relationship.

3. What’s the test for discrimination on the basis of family status?

The answer is, unfortunately, complicated and uncertain. In 2012, the Supreme Court of Canada established a two-stage test for discrimination claims, including in employment (Moore v. British Columbia (Education):

• The complainant employee must prove a “prima facie” case (a case on its face) of discrimination: they have a characteristic protected from discrimination by the applicable human rights law; they experienced an adverse impact or treatment; and the protected characteristic was a (not necessarily the only) factor in that adverse impact or treatment.

• If the employee does so, the employer can defend itself by either: disproving the prima facie case; or justifying the discrimination based on an exemption in the human rights law, or on a bona fide occupational requirement (”BFOR”, sometimes also called a “bona fide occupational qualification” or a “genuine occupational requirement”) that it can’t accommodate without undue hardship.

The test for whether the employer has discriminated and has met its duty to accommodate is consistent across Canada in many human rights areas – but not family status discrimination, where Canadian courts and adjudicators have taken different approaches for some time. The resulting provincial variation and uncertainty is an interesting theoretical legal debate, but leaves employers in a practical quandary: what’s the test? Unfortunately, this uncertainty is likely to persist, since the Supreme Court of Canada refused to hear an appeal of a family status discrimination decision in 2019.

British Columbia. In 2004, the B.C. Court of Appeal enunciated a test requiring the employee prove  the employer imposed a change in a term or condition of employment that caused “serious interference” with a “substantial” parental or other family duty or obligation (Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society). Preceding the Supreme Court’s general discrimination test decision, this B.C. test has been criticized for focusing on employer-initiated changes instead of those that occur in employees’ lives (like having a child or aging parents) and raising the threshold to establish discrimination relative to other discrimination grounds. However, in 2019 the B.C. Court of Appeal reconfirmed this test (Envirocon Environmental Services, ULC v. Suen). And the Supreme Court of Canada’s refusal to hear an appeal means it stands – in British Columbia.

Federal. In 2014 and 2015, the Federal Court of Appeal established a four-part test for family status discrimination in the context of childcare (Canada (Attorney General) v. Johnstone and Canadian National Railway Company v. Seeley) requiring the employee prove that:

• A child is actually under their care or supervision such that their failure to meet the child’s needs will engage the employee’s legal responsibility.

• The child isn’t of an age where they can reasonably be expected to care for themself during the parent’s work hours, and the childcare need flows from a legal obligation not personal family choices. Thus not all family commitments necessarily trigger the employer’s duty to accommodate; for example, it’s not triggered by requests like a transfer to be closer to family, attending a child’s events or voluntary activities, or to spend more time with children when there’s an alternate childcare arrangement.

• They have made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and none are reasonably accessible: neither they nor the other parent (or guardian) can meet their legal childcare obligations while continuing to work, and an alternative arrangement isn’t reasonably accessible to them to allow them to meet their work needs.

• The workplace rule interferes with the fulfillment of the childcare obligation in more than a trivial or insubstantial way.

This federal test is only for complaints under the Canadian Human Rights Act, which applies only to federally-regulated employers, although some provincial courts and adjudicators still follow it for provincial human rights complaints.

Alberta. Some Alberta adjudicators have adopted a variation of the federal test (for example, SMS Equipment Inc. v. Communications, Energy and Paperworkers Union, Local 707), requiring the employee to prove: the child is under the individual’s care and supervision; and the childcare obligation engages the employee’s legal responsibility for the child. The question whether the employee made reasonable efforts to meet their caregiver legal obligations through reasonable alternative solutions only arises when (and if) considering whether the employer met its duty to accommodate.

Ontario. The Ontario Court of Appeal initially adopted the federal test (Partridge v. Botony Dental Corporation). However, in 2017 the Ontario Human Rights Tribunal flat-out rejected the notion the test to establish family status discrimination differs from that for any other protected ground for several reasons (Misetich v. Value Village Stores Inc. and Ananda v. Humber College Institute of Technology & Advanced Learning), including: its “legal obligation” element is hard to apply in the context of eldercare; it sets the bar higher than that for other discrimination grounds (for example, the requirements to prove the employee’s “legal obligation” is engaged and “self-accommod[ation]”); and a different test for family status discrimination creates legal inconsistency and uncertainty. Instead, the test to establish discrimination is the same for every protected ground – including family status – requiring the employee to prove:

• The negative impact on a family need results in “real disadvantage” to the parent/child relationship and attendant responsibilities, and/or to the employee’s work, based on a contextual assessment of the impact that might include other supports available to the complainant (but not whether they can “self-accommodate”).

• If the employee does so, the employer can defend itself by proving it can’t accommodate the employee to the point of undue hardship, incorporating consideration of the employee’s co-operation, including providing the employer with information about their family needs and collaboration on solutions.

In the context of the COVID-19 Pandemic, the requirement to work from home to comply with government directives or fulfill occupational health and safety law obligations, coupled with school and daycare closures, likely triggered the employer’s duty to accommodate an employee’s childcare obligations to the point of undue hardship while working from home, under any of these legal tests.

4. What is the penalty for discriminating on the basis of “family status”? 

The role of human rights tribunals is to remedy a case of discrimination, and they have broad authority to fashion a solution that’s appropriate to make the complainant employee “whole”. For example, human rights tribunals can do one or more of the following:

Monetary. Make monetary awards to employees to compensate them for the distress and humiliation of being discriminated against and to compensate them for any loss of income that resulted from the discrimination.

Cease & Rectify. Require employers to stop the discriminatory conduct and rectify the discrimination against the employee generally, or in a particular way, like granting the employee a particular accommodation. 

Act. Require employers to implement training, policies or procedures to address the discriminatory conduct.

The remedy the N.S. Human Rights Tribunal Board of Inquiry fashioned in a 2015 decision concluding family status includes how a family is formed (Adekayode v. Halifax (Regional Municipality) illustrates the breadth of a human rights tribunal’s powers to make an employee whole. The Tribunal concluded the employer discriminated against the employee on the basis of family status when it gave top-up benefits for parental leave to adoptive parents but denied them to biological parents, depriving the employee of money and time with his child – and awarded him a paid parental leave with top-up even though the child was no longer an infant.

5. How do employers accommodate “family status”?

“Family status” is a personal characteristic that human rights laws protect from discrimination, so the employer has a duty to accommodate it: to take steps to offset the discriminatory impact of a workplace rule, policy, requirement or practice by adjusting, revising or eliminating it. The guidelines applicable to all accommodation requests also apply to those based on family status:

Undue Hardship. How far does the duty extend? As with any accommodation request on any basis, there’s no “standard” answer: employers must consider each individually and, where warranted, accommodate to the point of “undue hardship”. This means employers are required to suffer some hardship and it’s a high bar. There are many factors relevant to quantifying the hardship level of an accommodation, key among them:

• Financial cost relative to the employer’s size.
• Disruption of a collective agreement.
• Problems of morale of other employees.
• The interchangeability of the workforce.
• The adaptability of facilities.
• The magnitude of any safety risks and who bears them.

Two-Way Street. Accommodation requests come up as a result of employer-initiated workplace changes, or changes to the personal circumstances of an employee or their family. An employer considering changing its operations should consider how those changes might impact its workforce and, where possible, give employees advance notice so they have the opportunity to make necessary arrangements or adjustments. On the flip side, as in all accommodation requests, the employee has a duty to cooperate in the accommodation process. In the context of family status, this includes sharing information with the employer about the relevant needs to allow the employer to identify and assess potential accommodation options, and working cooperatively to find a reasonable (not a perfect) accommodation solution.

One Size Does Not Fit All. Even if an employer has standardized procedures for evaluating requests and implementing accommodation, it ought not have standardized solutions: employers must consider the individual circumstances of the employee requesting accommodation and work with that employee to determine an accommodation that’s appropriate in the particular case. Creativity and flexibility are key – particularly in the context of COVID-19. Practically, in the case of accommodation on the basis of family status, a flexible work arrangement often adequately addresses the request. For example:

• Changing an employee’s existing schedule. For example, instead of working 7.5 hours from 9 a.m. to 4:30 p.m., allow the employee to work the same number of hours but in two or three blocks (for example, 7:30 – 10, 1:30 – 3:30 and 7:30 – 10:30) or whenever they can, if that’s feasible.
• Maintaining an employee’s existing schedule.
• Allowing the employee to work specific shifts (for example, only days, only nights, only mornings, and so on).
• Limiting the number of hours an employee works in a day or week.
• Allowing the employee to work remotely, such as working from home (while complying with legal obligations and taking appropriate cybersecurity measures).

Depending on the circumstances, however, other accommodations could be reasonable. For example, it could be reasonable to grant an (unpaid) leave of absence, to which the employee might be entitled in any event under employment standards or other laws, with job protection.  In the face of the COVID-19 Pandemic, many Canadian governments have implemented changes to employment standards laws to grant employees additional rights, such as a leave of absence, to deal with specific impacts of COVID-19.

Living Tree. The duty to accommodate isn’t limitless, but it is an ongoing process. The accommodation obligation begins when an employer is, or ought to be, aware of the need for accommodation and might take many forms as an employee’s family status and attendant obligations evolve over time. The duty to accommodate only ends when the employment relationship ends, or the employer can establish its accommodation efforts have reached the point of undue hardship.

Write it Down. Keeping thorough and accurate records of the entire accommodation process, including the employee’s and the employer’s steps, is important as an employee’s accommodation needs evolve and, if necessary, can provide evidence in response to a human rights complaint for failure to accommodate.

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Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Team @ McInnes Cooper to discuss this topic or any other legal issue.

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