How to Balance Family Status Accommodation Requests07-Apr-16
By Ryan Trainer
Family Status discrimination is an emerging area of Human Rights law and Alberta employers are seeing an increase in requests for Family Status accommodation. Defined under the Alberta Human Rights Act, Family Status is a protected ground for requesting short term or long term accommodation to care for those related by “blood, marriage or adoption” on the basis of:
- Child care obligations
- Elder care obligations
- Spousal care obligations
In the leading decision of Johnstone v Canada (Border Services Agency) (“Johnstone”), considered the issue of discrimination on the basis of Family Status and what an employee was required to demonstrate to establish discrimination. Where accommodation for Family Status is claimed, the employee must demonstrate:
- The individual, such as a child, is under the care and supervision of the employee.
- The care obligation engages the employee’s legal responsibility to care for that family member as opposed to an individual choice to care for them.
- An employee must demonstrate they have made reasonable efforts to meet their care obligations through alternatives to accommodation. For example, placing the child in day care.
- The workplace rule to which they are seeking accommodation must interfere in a non-trivial manner with the employee’s care obligations.
Family Status accommodation requests require a balancing act between business interests and operational requirements on the one hand, and the non-trivial interference with an employee’s obligations to care for family members on the other. In setting out the test for Family Status accommodation, Johnstone established a flexible test to advance the broad purpose and protections inherent in human rights legislation, including the principle that individuals should have equal opportunity in the workplace despite family care obligations. While Johnstone has left the door open for novel Family Status requests, the decision recognized that employers must not accommodate every instance where work life and family life intersect.
Understanding when an obligation to accommodate arises and how to respond to a request can save employers significant time and expense. To learn more about how to respond to requests for accommodation that fall under Family Status please register for our upcoming webinar “Accommodation Due to Family Status- What Employers Need to Know”.