Accommodating Family Status: It's a Two-Way Street

By Kathryn Benson, MIRHR

Senior Human Resources Consultant, HR Options

As in most disputes between employees and managers, there are always two sides to the story. Often a manager sees a poorly performing employee and the gut instinct is to terminate before things get worse. On the employee side, the employee may feel misunderstood and unsupported by the manager, which leads to accusations of "setting the employee up to fail". One underlying cause of friction that is becoming more prevalent, as well as a liability for employers in terminations, is the issue of accommodating for Family Status under the provincial Human Rights Legislation. 

In a recent situation, a manager asked an employee to come back to work early from maternity leave to help out when they were short staffed. She didn't want to originally, but finally agreed to a reduced schedule because the employer needed her. After being back for only a few weeks, the manager terminated her providing only the minimum notice under the Employment Standards Act (ESA) because he was not happy with her performance and the fact she could not fulfil more hours. The employee accused the manager of discrimination under the Human Rights Code based on Family Status. She felt she was discriminated against for going on maternity leave, and then having to balance parental duties with her work shifts.

Some might say that the fact that the employee agreed to come back to work by choice and then was terminated, with ESA minimum notice, seems on the surface to have been legitimate (i.e. notice of termination was provided). However, whenever there are extenuating circumstances, the case for providing above minimum notice regulations may exist. Specifically in this case, because of her perception of being discriminated against for having family obligations, the employee should have clearly voiced her concerns, and the employer should have investigated the situation. Investigating the human rights complaint does not stop the employer from attempting to resolve the performance issues – this should have occurred as well. If the investigation found that accommodation was needed under the protected ground of Family Status, the employer should have worked with the employee on appropriate accommodations, instead of proceeding with the minimum notice termination.

The bottom line is that employers cannot ignore requests to accommodate for Family Status. However, that being said, accommodations are a two-way street - the employee has to do their best to search for alternative options, as much as the employer has to provide flexible solutions (where it is not a bona fide occupational requirement to work the job as provided). For example, if a child’s daycare closes early and the employee's shift is not finished, an alternate daycare should be found by the employee to accommodate his/her work hours. Accommodating for Family Status doesn't mean the employer has to let the employee pick and choose shifts, or pay for a nanny to be on-site, but the employer must accommodate in good faith up to undue hardship. Also, an employer can certainly ask an employee to demonstrate they have researched alternate options and are involved in providing suggestions that would be considered reasonable for the work environment.

One final point to keep in mind is that it doesn't matter how poorly an employee is performing - if it's a Family Status accommodation request, personal feeling towards the employee must be set aside, and a good faith investigation should be completed. The end result may still be termination, but if proper steps are taken, an employee-employer relationship may be saved, or in the very least, the employer’s liability is minimized.

To review a recent case which speaks directly to the above, see Federal Court of Appeal  Canada (Attorney General) v. Johnstone  (released May 2, 2014).

For more information on how HR Options can assist you with human resources services, and/or outsourced payroll and employment in the U.S. or Canada, please contact Nunzio Presta at 1-866-859-4157 toll free or via email at npresta@hroptions.com.