Back to school season is upon us once again, although it may look a little different from previous years and will vary depending on where you live. Provinces such as Quebec, New Brunswick and Saskatchewan are implementing mandatory in-person attendance, while Ontario and B.C. are requiring school boards to provide in-person and remote learning options for all students.
For parents returning to work after the pandemic, balancing work and childcare responsibilities will be more difficult than ever. Many have gotten used to working from home, but if employers require their employees to return to work, they must do so unless they have no other viable childcare arrangement. This applies to pick-up and drop-off situations as well, where parents must look into all alternatives, such as buses, carpools and alternative childcare options, before asking their employer for accommodation. Furthermore, accommodation does not necessarily mean being off work or working remotely; the employer may be able to accommodate in other ways.
Two recent Human Rights cases from B.C. shed some light on how courts and tribunals will assess childcare obligations in the context of the laws of the workplace.
The first case, Ziegler v Pacific Blue Cross (No. 2), comes from the BC Human Rights Tribunal and concerns the mother of a ten-month-old baby who alleged that she was discriminated against on the basis of family status. Ms. Ziegler was a Team Leader at Pacific Blue Cross (PBC), where her duties included closing the facility down once calls were cut off at 4 to 4:30 pm. She returned from maternity leave and was told that her duties would soon be extended until 5 pm or later. She informed PBC that this would make it impossible for her to collect her son from daycare at 6 pm, a drive which could take up to 90 minutes. She testified that it was very difficult to find childcare services for young infants, and her husband had just started a new job as an accountant, where his hours were 9:30 am to 5:30 pm. Further, daycares in the area had an eight-month to one-year waitlist and the daycare in which her child was enrolled required two-months’ notice to remove a child, which she claimed made it unreasonable for her to switch daycares.
However, Ms. Ziegler never looked into securing a babysitter or in-house childcare. She refused to look into alternatives to the “corporate” daycare her son was enrolled in, stating that she would not “lower the standard of daycare for [her] son.” Instead, she took the 4-week grace period offered by the employer to secure alternate employment and tendered her resignation to PBC. Her inflexibility proved to be her downfall and led to the dismissal of her complaint.
The test for discrimination on the basis of family status from HSABC v Campbell River and North Island Transition Society, 2004 (“Campbell River”) requires the complainant to establish that:
- The employer imposed a change in a term or condition of employment, and
- The change resulted in a serious interference with a substantial parental or other family duty or obligation.
The court found that the first part of the test had been met but the second had not. This is largely due to the fact that the change to her term of employment was not serious enough to interfere with a substantial parental obligation. Ms. Ziegler had the option to investigate other forms of daycare but did not make any efforts to accommodate the new work schedule. This led to her failure to meet the test for family status discrimination and, as a result, having her claim dismissed.
In another BC case, Envirocon Environmental Services ULC v Suen, a new father alleged indirect discrimination when his employer assigned him to a project that required him to be away from home for eight to ten weeks shortly after the birth of his daughter. When he refused to accept the assignment, his employment was terminated for cause on the basis of insubordination and a disrespectful manner of communication. In response, he brought a human rights claim.
The Tribunal held that the employee could establish direct discrimination, as his employment had been terminated because he had become a parent. Indirect discrimination was also established as there had been a term or condition of his employment that resulted in a serious interference with a substantial parental obligation.
However, the Court of Appeal found that the second part of the Campbell River test was not met because Mr. Suen had not alleged that his child required special care or that he was the sole caregiver for his child. They found that he was no different from the vast majority of parents who are required to be away from home for extended periods for work-related reasons and who continue to meet their obligations to their children. They, therefore, overturned the Tribunal’s decision and upheld Mr. Suen’s termination. The job requirement did not impact a childcare obligation.
Both of these cases serve as a reminder of the high standard required to establish family status discrimination. Employees are unlikely to be successful without proving that they diligently explored alternative arrangements. In other words, they must establish a need or obligation, and not simply a preference.
However, it is important to note that these cases do not take place under current pandemic conditions, under which access to childcare is complicated for most parents. While daycares and schools are reopening, many parents are concerned that these spaces are unsafe for their children.
Many parents are opting to keep their kids at home, and even those that choose an “in school” model may be home much more than usual in some provinces. However, choosing to keep their child at home may mean that they are not entitled to accommodation from their employer and might be risking their job as a result. It is only when an employee has no other options and their employer cannot find alternatives for them are they allowed to remain at home on unpaid leave until childcare arrangements can be made.
For parents who are concerned about returning to work, it is usually best to consult an Employment Lawyer about your rights and obligations before navigating childcare and work conflicts. Our team will work with you and ensure that your human rights are not being violated, and if they are, that you are fairly compensated. You are not alone in this battle.