A recent national survey shows one-third of female employees in Canada have considered quitting their jobs to take care of home responsibilities during the COVID-19 pandemic. That is a significant and unfortunate statistic, given that women make up a valuable segment of our workforce and economy
There is no question that the COVID-19 pandemic has made it very stressful for Canadian families to manage childcare, family and work obligations (in fact, the survey also showed that approximately 20% of men have considered quitting their jobs as a result). Given the ever-increasing cost of living in Canada, the majority of Canadian households requiring dual-income earners (i.e., both spouses earning employment income) simply to make ends meet.
As Canadian society and economy evolve as a result of the COVID-19 pandemic, there are helpful solutions to mitigate the pressure on Canadian families. Most importantly, as the survey points out, “we need collective strategies and actions to address the pressures that are forcing so many women to think about leaving the workforce.” What are some solutions?
Human Rights Law: Family Status and Childcare Accommodations
All employers play a significant role in managing accommodation issues and the pressures facing many Canadian families in managing their work-life responsibilities. In fact, this is exactly why both the Ontario Human Rights Code (which applies to most employees in Ontario who are regulated by provincial employment law) and the Canadian Human Rights Act (which applies to employees who work for an employer regulated by federal employment law) require all employers to fulfill a legal “Duty to Accommodate” their employees in particular circumstances.
Human Rights Protections
All employees in Ontario (and Canada) are protected under human rights law by what are known as “prohibited grounds of discrimination.” In other words, their employers cannot treat differently or unequally (discriminate) against them because of their personal characteristics, including:
- Age
- Family Status
- Ancestry
- Disability
- Creed (religion)
- Place of Origin
- Ethnic Origin
- Colour
- Citizenship
- Sex (including pregnancy, gender identity)
- Sexual Orientation
- Race
- Marital Status
- Receipt of Public Assistance
For example, an employer cannot choose to temporarily lay off (or terminate employment) one particular employee from their job because they are in their 60’s and perceived close to retirement, or because they have health issues that requires regular workplace accommodations. To do so, that would constitute a failure to accommodate and a discrimination claim (as well as a wrongful dismissal claim entitling the employee to a financial severance package).
An Employer’s Duty to Accommodate an Employee’s “Family Status”
As the Ontario economy slowly re-opens, there are a few workplace accommodation issues of which employers should be mindful, specifically those with employees with family obligations who represent some of the most vulnerable employees to be disproportionately impacted by the COVID-19 pandemic. These employees are protected by (and their employers must accommodate) their “family status” under human rights law.
The legal term “family status” refers to an employee who is “in a parent and child relationship.” This means not only parents only caring for their children, but also people caring for aging parents or relatives with disabilities – basically, any family member requiring care, responsibility and commitment.
All employees with dependent family members (e.g., children or elderly parents) face significant barriers when it comes to returning to work, especially as there still remains uncertainty as to when schools will fully re-open, or how they will balance remote learning vs. in-person school attendance. This has created significant child-care accommodation issues, as parents try to manage their work obligations with obtaining supervision of their children during regular working hours.
As with other grounds of discrimination, such as disability, employers are required to work with their employees to balance their personal family obligations with their work obligations. While the employee is required to first show they have taken reasonable steps to secure childcare arrangements for their dependent children, the employer must then take the steps required to provide reasonable accommodations, including offering:
- allowing alternative work (working from home or working remotely)
- change in required hours of work (or flexible schedules)
- temporary leave of absence to care for children or other family members who are aging, ill or have a disability.
The employer’s Duty to Accommodate personal characteristics protected under human rights law (e.g., disability or family status) requires an employer to take all reasonable steps to accommodate each particular employee’s circumstances up to the point of “Undue Hardship.” This is a legal test requiring an employer to prove that providing any more workplace accommodations is too expensive, or that it creates serious health and safety hazards.
However, the Duty to Accommodate is a shared responsibility or a “two-way road,” meaning employees must themselves cooperate and accept reasonable accommodations from their employers – even if the employers’ accommodations are not ideal or their preferred choice.
As a person with family status needs, it is important to consider advising your employer what your family status-related needs are, with supporting information as needed, and help explore possible solutions.
As an employer, it is important to consider accepting your employee’s requests for accommodation in good faith, and ask only for needed information and keep that information confidential. Employers are required to properly find a solution as quickly as possible.
Contact Employment Lawyer
With years of experience in Ontario employment law and human rights law, Bune Law is happy to provide guidance and advice into your specific workplace situation. If you are an employee who would like more information from an employment lawyer regarding your workplace accommodation rights, or an employer needing guidance on managing human rights issues in the workplace, please contact 647-822-5492 or fill out the contact form today.
Disclaimer: The content on this website and blog is not legal advice or legal opinion of any kind, and is only general information. It is in no way particular to your individual case and should not be relied upon in any way. The outcome of a legal matter depends on its unique circumstances, and prior successes are not indicative of future results. No portion or use of this website or blog will establish a lawyer-client relationship with the author, this law firm or any related party. Should you require legal advice for your particular situation, please fill out the form below, or call 647-822-5492, to request an initial consultation.