Are you:
- A single parent who needs to take time off work to care for your sick child?
- Wondering what your legal entitlements are?
- Worried about asking your employer for time off for fear of reprisal?
Well, you have come to the right place.
This blog post answers your questions.
Duty to Accommodate to Point of “Undue Hardship”
Put simply, employers are required to accommodate individuals to the point of “undue hardship” where the need for accommodation relates to a ground protected by human rights legislation, such as family status.
Undue hardship is the limit beyond which employers are not obligated to accommodate. Employers are expected to exhaust all reasonable possibilities for accommodation before they can claim undue hardship, which is a high standard to meet.
Undue hardship includes cost, health, and safety considerations. In other words, employers will not be required to risk the health and safety of others to accommodate one employee, or to put the organization on the verge of bankruptcy.
The accommodation process is a two-way street: the employee must make a request for accommodation and support it with documentation, while the employer must assess the need for accommodation, options for accommodation and their ability to accommodate the employee. That said, in some situations, an employer may have a duty to inquire where they are aware or ought to be aware of a need for accommodation.
Family Status Accommodation
The Ontario Human Rights Code (the “Code”) defines family status as “the status of being in a parent and child relationship.” In other words, the term can apply to the adult parents of young children, or alternatively the adult children of senior parents. In any event, the Code states that everyone has the right to be treated equally in employment on the basis of family status. In order to better understand the lingering debate over accommodating parental responsibilities, read our blog post: Ontario’s Human Rights Tribunal And The Lingering Debate Over Accommodating Parental Responsibilities.
Importantly, employers are only obligated to accommodate an employee’s legitimate needs, not their preferences. Accordingly, if you are a single parent and your child is sick, the employer will, in the large majority of cases, be obligated to accommodate you up to the point of undue hardship, because it will likely be a legitimate need based on the Code-protected ground of family status, as opposed to a preference. On the other hand, let’s say you are not a single parent but always prefer to be the parent who takes time off for their sick child, even when the child’s other parent is available to assist; in that situation, an employer might reasonably assess taking time off to take care of your sick child as a preference as opposed to a legitimate need based on a Code-protected ground. In addition, the employer may ask you to support your accommodation request with reasonable supporting documentation.
Conclusion
Employers have a duty to accommodate employees up to the point of undue hardship based on an employee’s legitimate needs, not their preferences. Family status is one of the grounds protected under the Code, which includes childcare obligations.
Employers would be wise to seek legal advice from an Employment Lawyer with respect to how to handle requests for accommodation. Rejecting an accommodation request out of hand, or failing to address it properly, can prove to be costly including substantial liability, reputational harm and low employee morale. If you are an employer who needs assistance with handling requests for accommodation, we would be pleased to guide you through the process to ensure that you comply with the law and minimize potential liability.
On the other hand, employees should keep in mind that accommodation is a two-way street: employees must also participate in the accommodation process. At the same time, the law provides protections to address an employee’s family status. If your employer refuses to accommodate a legitimate request or is discriminating against you because of your family obligations, we would be happy to help you understand your rights and obligations, as well as to ensure that you get what you are entitled to.
We are Employment Lawyers who see things from both sides, as we represent both employers and employees. And as we often say, if you think you need an Employment Lawyer, you probably do!
