COVID-19 – Family Status Accommodation and Employer Obligations18-Mar-20
By McLennan Ross Labour & Employment Team
As of March 17, 2020, there are 424 reported cases of COVID-19 in Canada, 74 of those appeared in Alberta alone. Canada’s and Alberta’s response to the COVID-19 pandemic continues to evolve daily.
In Alberta, there have been two new developments that may create obligations for employers to accommodate its employees as required under human rights legislation.
First, effective March 15, 2020, Alberta’s Chief Medical Officer of Health announced that all student attendance at K to 12 schools was prohibited and in-person post-secondary classes were cancelled, and all licensed childcare facilities, out-of-school care programs, and preschool programs were closed indefinitely. Although approved day homes are exempt from these closures, as they care for fewer than 7 children at a time, the Chief Medical Officer of Health’s announcement had immediate and significant impact on parents in Alberta who rely on the school system, childcare facilities, and programs to provide child care during business hours.
Second, both provincial and federal governments have mandated, in part, that individuals experiencing symptoms of illness or who have been diagnosed with COVID-19 remain self-isolated or quarantined for at least 14 days. Those individuals who are sick may require care from a family member.
The purpose of this publication is to provide employers with information on how their obligations to accommodate family status under provincial human rights legislation may arise in the current era of COVID-19. We also provide our guidance on what steps and questions employers should be taking and asking now.
Family Status Accommodation
Family status accommodation remains a difficult area of the law to navigate. This is in large part due to the inconsistent manner in which the family status discrimination test has developed in each province, and the approach taken by provincial human rights tribunals.
However, in each province and federally, human rights legislation prohibits discrimination on the basis of the protected ground of family status. The Alberta Human Rights Act defines “family status” as the “status of being related to another person by blood, marriage or adoption”. This has been found to include an employee’s childcare or elder (parent) care obligations.
Parents are legally responsible for the care, supervision, maintenance, and support of their children. At a minimum, that obligation entails the provision of the necessities of life, which include food and shelter. It also entails providing appropriate supervision to children and supporting their education.
Similarly, courts and tribunals have recognized that the familial obligation to provide care to elderly parents is also encompassed by the family status protections under human rights legislation. While courts and tribunals have not considered family status substantively in respect of other family care requirements, it is likely that family status accommodation could arise in cases where an individual is required to provide care to a sick spouse or other family member.
In the context of a family status claim, claimants must show that a family member is under their care and that the care obligation engages the individual’s legal or actual responsibility for that person, as opposed to being a personal choice. This is because “family status” does not include personal choices.
b. Childcare Accommodation
The law related to childcare obligations remains unsettled across jurisdictions. Some cases require the employee to demonstrate the following 4 factors in order to establish a prima facie case of discrimination:
- a child is under the employee’s responsibility;
- the childcare issue engages the employee’s legal responsibility for that child, as opposed to a personal choice;
- the employee made reasonable efforts to meet those childcare obligations through reasonable alternative solutions; and
- the employer’s rules or actions (or inactions) interfere, in more than a trivial or insubstantial manner, with the employee’s fulfillment of the childcare obligation.
Other cases, however, have held that while employees do have a responsibility to make reasonable efforts to self-accommodate, this should not be a hurdle that must be overcome to establish a prima facie case of discrimination and engage the duty to accommodate. Rather, these cases prefer to assess the issue of self-accommodation contextually alongside the employer’s efforts and ability to accommodate within the framework of a multi-party (i.e., the employer and/or the employee and/or a union) search for reasonable accommodations. This reasoning has been applied in Alberta.
c. Eldercare or other Family Accommodation
Similarly, there has not been a consistent approach to determining eldercare or other family care discrimination issues, nor has there been substantial judicial consideration of the issue across jurisdictions.
In one Human Rights Tribunal case from Ontario, the applicant was terminated after his employer became frustrated with his continued absences relating to his efforts to take care of his ailing mother. His mother’s health had declined to the point where he was required to do much of his work from home so that he could be available if his mother should need assistance. The employer warned the applicant several times that he would be terminated if his attendance record did not improve, and when he did not comply, he was terminated. The Tribunal found that since the applicant’s presence at home was required, as opposed to simply based on a personal preference, the employer had a duty to accommodate him.
Although a firm legal test has not been established to assess cases of eldercare or family care discrimination, a claimant would likely be required to establish the individual requiring care is under the employee’s care and the employee has a legal or actual obligation to care for the individual. For example, in Canada, non-fulfillment of elder care obligations could attract not only civil responsibility conveyed at common law or through provincial legislation (i.e., Protection of Persons in Care Act (Alberta)), but also criminal responsibility if not exercised properly.
Strategies to Accommodate Family Obligations in COVID-19 Times
The main difficulty employers experience when assessing family status accommodation is:
- determining the degree to which the employee’s legal or actual obligations are engaged (as opposed to their personal choices or preferences), and
- striking the appropriate balance between:
a) the obligations of employees to make reasonable efforts to find their own alternative solutions to meet their familial duties, and
b) the duty of employers to provide reasonable accommodations to the point of undue hardship.
The solution to this difficulty will depend on the facts of each case, and no one family status accommodation case will be like any other.
In the short term, while employees make family care arrangements, employers should consider whether it is feasible for employees to:
- work from home;
- use vacation or banked time;
- bring their children to work;
- modify shift schedules to accommodate co-parenting or family care responsibilities; and/or
- allow employees time off work on an unpaid basis.
Further, some provincial employment standards legislation provide for a form of job protected family responsibility leave. In Alberta, the Employment Standards Code entitles employees to 5 days of job-protected personal and family responsibility leave if they have been employed at least 90 days with the same employer.
At this time, employers should be assessing the short-term needs of its employees with compassion and on the understanding that an unforeseeable and sudden circumstance has arisen that has impacted their existing childcare arrangements, or that may create new obligations to care for sick family members. The question then turns to what steps is the employer required to take in the longer term to accommodate its employees’ family care obligations given the indefinite and uncertain nature of the impact of COVID-19 (and given the fact that employers will be stretched to accommodate the many employees currently dealing with the same issues)
Generally, each case should be assessed individually, and the employee should be engaged in the accommodation process. It is appropriate to carefully gather information as part of the search for more long-term accommodation. This would include gathering information such as:
- distinguishing between those working conditions that impact an employee’s personal lifestyle choices and those that truly impact their obligations to care for their children or their family member;
- determining the extent to which the employee can readily self-accommodate and what steps the employee has taken to self-accommodate; and
- assessing what accommodations can reasonably be offered (to the point of undue hardship) to alleviate the adverse impact on employees’ obligations to their children or family members.
Employers should be asking employees what steps they have taken to find child or family care and how their normal work schedule or duties prevent them from finding child or family care. Further, employers should be advising employees they need to make efforts to locate child or family care which works with their schedule or duties.
If employees cannot reasonably find long-term child or family care that works with their schedules or duties:
- consider what changes can be made to schedules or duties so that employees can obtain child or family care;
- ask employees what changes they think could address their concern; and
- remember that the employer ultimately decides the issue - the employee doesn’t get to demand a specific change - a “reasonable accommodation” is the expected standard.
Ultimately, after a period of transition, employers can expect its employees to adjust to the new reality and take steps to balance their family and work responsibilities. However, employers should be prepared to be flexible in their assessment of family accommodation cases, should determine whether long-term accommodation can be offered (i.e., an extended unpaid leave of absence), and should determine at what point it will reach undue hardship where accommodation is no longer reasonable.
The team at McLennan Ross LLP welcomes employers’ questions and can guide employers through any family status issues that may arise at their workplaces.
 See Devaney v ZRV Holdings