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Federal Court of Appeal Enforces Four-Point Test for Family Status


By Glenn Tait

The issue of an employer’s obligation when employees are requesting accommodation on the basis of family status continues to be a vexing one. Recently, the Supreme Court of Canada refused to consider an appeal dealing with family status that was brought from the Federal Court of Appeal.

In this case, an employee went on a year-long maternity leave. In anticipation of her return, the employee requested that she be allowed to work from home, in order to breastfeed her infant. However, the employer and employee were unable to agree on a work schedule. As a result, the employee filed a grievance, alleging she was not being accommodated, both on the basis of sex and family status. The grievance was initially denied, but that decision was appealed to the Federal Court of Appeal.

In its decision, the Federal Court of Appeal noted that for an employee to establish that there is an initial (prima facie) case of discrimination on the basis of family status, the employee has to establish four things:

  • That 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
  • That 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.

It is only once this case is made out that the employer must demonstrate that the employer accommodated the employee to the point of undue hardship.

The decision in this case turned mostly on the second element of the test – the employee’s legal responsibility to care for her child. The employee had two medical notes from a doctor; the first supporting the employee’s choice to breastfeed her child beyond the one year maternity leave, and the second noting that the employee should be breastfeeding twice over an eight hour period to ensure that the milk supply is maintained. Notwithstanding this, the Federal Court of Appeal confirmed the arbitrators finding that the employee’s choice to breastfeed her child during working hours was a personal, rather than a legal, responsibility. Importantly, the Court also found the employee in this case did not make reasonable efforts to find an alternative solution.

The Supreme Court of Canada’s decision to deny leave to appeal in this case implicitly confirms both the conclusion reached by the Federal Court of Appeal and the four-part analysis to determine whether the employer has an obligation to accommodate on the basis of family status. It should be noted, however, that the Federal Court of Appeal went to some length to make it clear this case was decided on its own facts. While the facts are not entirely unique, meaning the decision does provide guidance to employers in managing these types of issues, it is important that employers carefully consider an employee’s circumstances when accommodation requests of this nature are made.

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