Accommodating Family Status – Needs vs. Preferences

by Bennett Jones LLP
Contact

Although the duty to accommodate employees with demanding child care responsibilities has long been recognized as part of an employer's duty to accommodate on the basis of family status, as a result of the aging Canadian population a new category of family status claimants has been judicially recognized: employees with elder care responsibilities. Whether arising in the traditional child care or the expanding elder care category, employers in Ontario have faced considerable uncertainty in determining the scope of their duty to accommodate on the basis of family status.

A recent decision of the Ontario Human Rights Tribunal (HRTO), Devaney v. ZRV Holdings Limited 2012 HRTO 1590 (Devaney), suggests if the employee's caregiving responsibilities are required, as opposed to a mere preference, the employer will have a duty to accommodate.

The Facts in Devaney

Devaney was an employee of ZRV, an architectural firm, for approximately 27 years until his employment was terminated in January 2009. Devaney was considered to be a talented employee and at the time of the termination of his employment his responsibilities included primary carriage of a large development file. However, toward the end of 2007, Devaney, who was the primary caregiver for his disabled mother, started working from home frequently to accommodate his caregiving responsibilities.

Devaney's employer insisted that Devaney, like all other employees, be present in the office, daily between core working hours of 8:30 a.m. to 5 p.m. and on numerous occasions raised concerns about his frequent absences or late arrivals. Devaney adopted the view that most of his work could be done remotely from home, outside the core business hours with the aid of technology.

Notwithstanding that Devaney's absences did not seem to affect the quality of his work product, Devaney's employer continued to insist that he be present in the office daily. Ultimately, as a result of his failure to work out of the employer's office, Devaney's employment was terminated for cause in January 2009.

Tribunal Revises the Test

Following a review of the pre-existing and largely conflicting tests established by the Canadian Human Rights Tribunal and the British Columbia Court of Appeal, the HRTO adopted a new test focusing on the distinction between the needs and preferences of employees with caregiving responsibilities.

Specifically, the HRTO found that in order to make out a prima facie case of discrimination on the basis of family status, an applicant will be required to demonstrate that he or she was adversely impacted on the basis of a requirement imposed by his or her status as a caregiver. If an adverse impact is deemed to relate merely to an employee's preference or choice, no prima facie case will be established. In adopting the revised test, the HRTO denied any reasonable basis on which to create a higher threshold or test for claims based on family status compared to claims based on other protected grounds (e.g., sex, age).

The HRTO found the company's strict attendance policy requiring Devaney to work out of the company's office had an adverse impact on Devaney as a result of his family responsibilities. The HRTO went on to conclude that by failing to engage in a dialogue with Devaney about his needs, the employer contravened the Code. Although Devaney found another job shortly after his termination, the HRTO awarded Devaney $15,000 in general damages.

What This Means to Employers

This case confirms that family status will be interpreted to cover not only child care responsibilities, but also elder care responsibilities. Given the HRTO's rejection of the line of cases that required a higher threshold for family status claims (e.g., serious interference with a substantial parental duty) than for claims based on other protected grounds, employers in Ontario need to be cautious not to dismiss claims based on family status out of hand. Rather, consistent with the test articulated in Devaney, employers will need to provide reasonable accommodation of an applicant's needs, but not mere preferences.

Best Practices Regarding Accommodation Requests

Devaney serves as a reminder of several best practices for employers regarding requests for accommodation:

  1. Don't dismiss requests out of hand. Upon learning of an employee's request to satisfy his/her family responsibilities, employers should engage in an immediate dialogue to determine the scope of the employee's needs and to design an accommodation strategy if necessary.
  2. Document the accommodation process. Employers should make carefully documented inquiries to determine whether the accommodations (e.g., working from home, modified hours, absences for family medical appointments) are in fact reasonably related to caregiving obligations and whether such obligations rise to the level of necessity or are a mere preference or matter of convenience. For example, if an employee advises that he/she wants to modify his/her hours of work to leave at 4 p.m. because daycare pick-up requires the employee to do so, it is reasonable for the employer to make a request in writing for the employee to confirm what other daycare options are nearby, what inquiries the employee has made regarding those options and whether there is another person who could pick-up the child at daycare.
  3. Policies must be reasonable. Employers should consider the flexibility of their attendance policies to determine whether employees with caregiving or other family responsibilities are able to work effectively from home or during non-traditional hours where technology and circumstances permit.
  4. Gather evidence of undue hardship. Bald assertions about flexible work arrangements negatively affecting workplace morale were rejected in Devaney. It is important to gather objective evidence related to productivity (e.g., sales results, 360 performance reviews) before taking the blanket position that employees cannot work from home.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bennett Jones LLP | Attorney Advertising

Written by:

Bennett Jones LLP
Contact
more
less

Bennett Jones LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.