‘Always a balancing act’ when it comes to family status rights

By Tony Poland, LegalMatters Staff • Determining an employee’s family status and accommodation rights under the Ontario Human Rights Code (OHRC) can be challenging, especially in the middle of a pandemic, says Toronto employment lawyer Ellen Low.

“There is always a balancing act in terms of family status,” says Low, principal of Ellen Low Employment Law. “For employers facing a family status request, getting legal advice is important to help navigate what the threshold is and what the requirements are. Conversely, if you’re an employee and you’ve got questions you should seek help to determine whether you have been discriminated against.  

“It’s certainly not a one-size-fits-all approach. The employer really does need to consider the unique needs of each and every individual employee,” she adds.

Low points to two recent OHRC tribunal decisions as examples of the challenges faced by employers and employees.

Community newspaper found in breach

In Espinoza v. The Napanee Beaver Limited, a tribunal found a community newspaper had breached its duty to accommodate a journalist who was a new mother to twin girls.

The tribunal was told that the woman was on maternity leave for about a year and was due to resume her regular duties in September 2017. However, she was unable to secure daycare that would take both of her children and proposed a modified schedule that would allow her to work later in the day. The idea was rejected.

“Unfortunately, I find myself unable to return to my full-time position and regrettably, and unwillingly, must resign,” the woman wrote to her employer just prior to her expected return.

Low says such cases turn on “the question of needs versus wants.”

“A parent may have a child who requires special attention and must be picked up at 2:15 each afternoon at his specialized school,” she tells LegalMattersCanada.ca. “That is different than having a child playing high-level hockey who needs to be taken to practice at 2:15.”

Low explains that while the employer must find a way to accommodate an employee with family status issues, it is also incumbent on the worker to be fair.

“There is an obligation on the employee requesting an accommodation to demonstrate to the employer that they have made some effort, in this instance looking for childcare,” she says. 

An example of the need to communicate

Low says the case is an example of the need to communicate in an effort to reach a compromise, such as taking a leave of absence until daycare is secured. Finding a solution can be difficult because “there are no hard and fast rules,” she adds.

“Not only is it a grey area, but we go back to that idea where it’s an individual obligation analysis based on the circumstances,” Low says.

In the end, the tribunal found the woman was “put in the position of having to choose between returning to work and caring for her girls.” She was awarded $12,485.23 for lost wages and $10,000 to compensate for injury to her dignity, feelings and self-respect.

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In another tribunal case, a man was terminated following a change to the work schedule. He started at a laundry in 2010 and in 2016 had arranged for a modified schedule that allowed him to leave at 2:30 p.m. to pick up his children while his wife was at work.

The next year, a new general manager served notice to all employees imposing a new “stricter” schedule, where they could only leave early for appointments with permission and only twice a month.

When the man was leaving at his regular time, he received a written warning. The next day he told the general manager that his wife tried to change her schedule but was informed she might have to wait for several months for an opening.

Received notice of suspension

As he was leaving after his shift, he received a letter informing him he had been suspended for five days and was told the next time he left at 2:30 he would be fired.

When he returned to work after his suspension he was in the lunchroom with coworkers when the general manager served him with a notice of termination.

“In this case, the employer made changes to everybody’s schedule but this worker had to take care of his children,” says Low. “This goes to the notion that just because you’re treating everybody equally doesn’t mean there is equality. The same accommodation won’t work for everybody.”

The man was awarded almost $30,000 in lost salary and $20,000 in compensation for injury to dignity, feelings and self-respect.

Low says she has been fielding more questions about family status accommodation as the pandemic drags on.

‘Employers are going to have to be more tolerant’

“People what to know their rights when they are at home with their children,” she says. “Children are doing online school from 9 to 3 and parents still have to work. Employers are going to have to be a little more tolerant of occasional Interruptions during meetings and conference calls. And we’re not just seeing issues from a formal family status perspective.”

Low says people have been seeking help with discipline and bonus issues related to working remotely.

“People are told their numbers are down so they are not getting their bonus for 2020.Part of the reason the numbers are down is because that person has been literally working two jobs at once,” she says. “Of course, their numbers are down and their productivity isn’t as good as it was.”

In the end, she says the employer has a legal duty to accommodate an employee “to the point of undue hardship and the undue hardship threshold is going to mean that adjustments have to be made.”

“Finding the right threshold is not always a simple matter,” says Low. “It’s up to the tribunal to determine whether the employer has done enough.”