Family Status Obligations
This is a follow up to Part One, in which we discussed a strategy for requesting accommodation. If you have yet to read Part One, we would recommend those strategies as a starting point. At this point in the process, we turn our minds to the legal obligations of the employee and those of the employer.
What are both of our obligations?
Family Status is a protected ground under the Human Rights Code. This means that one cannot experience differential/adverse treatment as a result of meeting one’s legal responsibilities as a parent: a caregiver such as a step parent could also potentially meet the definition, as could a child caring for a parent.
An employer has an obligation, under the Code, to ensure that their employees are not negatively impacted at work due to their family care obligations.
Your Obligations as a Parent/Caregiver
If you are in a parent-child relationship then you qualify for protection under the Code. There are obvious and basic legal obligations for one engaged in a parent-child relationship such as a parent cannot leave a toddler at home alone while they work a full day or expect their 5 year old to walk home from school on their own. The obligations will vary from case-to-case as each family dynamic is unique.
Your Obligations as an Employee
It is important to be respectful during this accommodation process, even when your emotions are involved. You do not want the conversation to turn to your conduct during the negotiations as opposed to the accommodation process. It is understandable for one to become frustrated when negotiating a reasonable accommodation plan so be mindful to take extra effort to ensure that your communications are kept professional, polite, and productive.
The employee is obligated to demonstrate that they have a need/gap that requires accommodating. For example, if an employee is expected to be at work by 6 a.m. and their day-care opens at 7 a.m. and they can explain that other reasonable alternatives have been explored/exhausted then they might have demonstrated a need/gap during this time. This is different from an employee preferring to leave work at 3 p.m., as opposed to their scheduled time of 5 p.m, in order to watch their child participate in athletics. It is not one’s legal obligation to watch their child play sports; it is a preference.
“Reasonable, not Perfect”
It is commonly noted that the employee has the right to “reasonable accommodation, not perfect accommodation”. “Reasonable” is subjective and measured on a case-by-case basis so you can expect some legitimate pushback if your expectations/requests are not “reasonable”. For example, expecting the employer to pay for your child’s day care services would be ideal; however, this request might not be reasonable. Alternatively, asking to start your day thirty minutes later than usual so you can drop your child off at daycare might be reasonable. Each situation is unique and this is a nuanced process.
“Two Way Street”
You should always engage in the accommodation discussion and provide the documents requested by the employer, within reason. The expectation is that you participate in a dialogue. A failure by you to engage in the process could be deemed a failure to meet your legal obligations and relieve the employer of their duty to accommodate.
As mentioned in Part One, you should also explore reasonable alternatives prior to seeking accommodation from your employer:
- Is there another person in this parent-child relationship? Can they help in any capacity?
- Any family member/friend/day-care/reasonable adult supervision available to support you?
After these options have been exhausted, you should turn to your employer with the residual needs and seek reasonable accommodation.
The employer should take every reasonable effort, up to the point of undue hardship, to accommodate the employee’s requests. Undue hardship is subjective and is difficult to define with great specificity. There is an expectation that an employer will incur some hardship in order to accommodate, but where it impacts the financial or operational viability of the organization, that will be undue hardship.
There is no universal test/standard for “undue hardship”. The context of the request and the operational capacity of the organization are important variables.
A “Mom and Pop” convenience store will have a different threshold for “undue hardship” than an organization like the Ontario Public Service (OPS) which employs over 60,000 people. That is particularly relevant when there is a request to accommodate an employee’s absence or modified hours of work.
There is a procedural duty to accommodate which includes the employer’s responsibility to actively investigate the request and assess accommodation options. As such, quick, unresearched rejections are typically below the threshold for meeting their obligations. There is also a substantive obligation to offer reasonable accommodation, if there is no claim of undue hardship or health and safety concerns. This requires the accommodation plan that is offered to be reasonable and based on legitimate rationale. However, “reasonable”, is subjective and is influenced by the specific situation.
In short, once the employee establishes a need for accommodation, the company is expected to assess its ability to accommodate based on a legitimate assessment of options and impact on the workplace. This dialogue can be an extended exchange of information; employees subvert their request by making a request and then refusing to provide further information or engage in meaningful dialogue.
Any accommodation discussion can be stressful, and this is especially true when protecting your rights to care for your family. It is not uncommon for these exchanges to become acrimonious, and the subjectivity of what is “reasonable” can cause frustration.
The goal is to allow those who can work, to do so, with reasonable accommodation for matters protected by human rights legislation. It can be a challenge to receive these rights and difficult for you to know if the employer is meeting their obligations, an objective, experienced, professional perspective could make a big difference.
Employees should focus on identifying their needs/gaps from a legal obligation lens and act diligently to present reasonable solutions with the least amount of impact on their employer. The employer needs to recognize that the legislation obligates them to accommodate their employees’ legitimate needs for caring for family members. The decision-maker should take each request seriously and thoroughly provide legitimate, defensible responses.