In Canada, it is law that an employer cannot discriminate against an employee on the basis of family status. Family status refers to family caregiving responsibilities. Family status is a prohibited ground of discrimination under both the Canada Human Rights Act as well as the Human Rights Code of Ontario. Most often, disputes between employers and employees surrounding family status arise from childcare responsibilities but have extended to caregiving responsibilities for other family members in some cases. 

Canada v. Johnstone, 2014 FCA 

In a leading case, Canada v Johnstone, a mother asked her employer for daytime shifts instead of rotational day and night shifts to accommodate the need to take care of her children in the evenings but was refused. The Court held that in order to establish whether an employer has discriminated against an employee on the basis of family status resulting from childcare responsibilities, the employee must demonstrate the following four factors: 

1. A child is under the employee’s care and supervision as a legal guardian or parent;
2. The childcare obligation must be the individual’s legal responsibility, as opposed to a personal choice;
3. The employee has made efforts to meet those childcare obligations through alternative means; and
4. The workplace rule interferes with the childcare obligation more than trivially. 

Claimants often run into issues establishing the second factor. Though courts have elaborated on what constitutes a legal obligation with regards to childcare, it is still somewhat unclear. In terms of caring for children, legal obligations include things like not leaving them home alone and taking them to doctors’ appointments. This does not extend to things such as taking children to extracurricular activities or being able to pick them up from school when after-school programs are an available option.

Extension to Caring for Elderly Parents 

The requirement that a caregiving responsibility amounts to a legal obligation has been relaxed in circumstances where employees are caregivers for their elderly parents. For example, in Misetich v Value Village, the employee was the primary caregiver for her elderly parents. On the grounds of family status, accommodation is given only to substantial parent-child relationships (i.e., parent caring for a young child or a child caring for an elderly parent). While there is an important objective attached to such relationships, as there is no legal obligation to care for one’s parents, these circumstances have additional hurdles to clear. For example, in Misetich, it was crucial that the child was the primary caregiver for their parents. In another case, it was crucial that the caregiver was essential to providing the elderly parent the necessities of life. 

Other Types of Family Relationships 

Caring for spouses is an accommodation which is protected on the grounds of marital status (B. v. Ontario [Human Rights Commission], 2002 SCC 66). The caregiving of other family members (e.g., siblings, cousins, aunts, uncles, etc.) is not yet a well-developed area in the case law and is best protected by section 49.3 of the Ontario Employment Standards Act which outlines Family Caregiver Leave. There are exceptions to this if a family member has been legally assigned as a dependent (e.g., for mental incapacity) and the employee is their guardian. 

Types of Accommodations 

Where an employee has established that a workplace policy discriminates against them on the basis of their family status, their employer has a duty to accommodate them. Accommodation should be personalized for the specific needs of each person. Some available options are: 

• Different or shifting start and end times
• Compressed schedule  
• Telework or remote working
• Extended maternity or parental leave
• Compassionate, discretionary, or other leave to care for sick family members
• Leave to provide child or elder care in unanticipated or emergency situations  
• Shift changes
• Reduced hours or part‐time work 
• Shifting or sharing work duties or tasks

Undue Hardship 

An employee’s right to accommodation is restricted by the legal principle of undue hardship. If the requested accommodation is disproportionate or overly burdensome on the employer, the employer will not be obligated to provide the accommodation, as it would result in undue hardship. The employee doesn’t need to establish that undue hardship is not an issue, rather it is a defence that the employer can rely on. Under the Human Rights Code of Ontario, an undue hardship will either be the cost of the accommodation, outside sources of funding, or health and safety requirements, if any.

When to Speak a Lawyer 

You should contact an employment lawyer if you believe your employer has treated you differently because of your family care obligations to ensure that you are aware of your rights. You should also speak with an employment lawyer if you are being refused accommodation related to your family care responsibilities. 

Takeaway For Employees 

If you are struggling to manage your caregiving responsibilities on top of your job duties, your employer may have a legal duty to accommodate you. Employees do not have to struggle in silence but should ensure their employers are fulfilling the obligation to provide necessary accommodation to the point of undue hardship. 

Takeaway for Employers 

Employers should regularly review their workplace policies to ensure that they are not discriminatory or adversely impact employees with childcare responsibilities. Employers must ensure that they fufill their duty to accommodate to the point of undue hardship. If you are unsure if whether you have met this burden, speak to an employment lawyer.