As offices continue to shift away from the full-time work-from-home days of the COVID pandemic into either hybrid work environments or full-time in-office requirements, employers are increasingly grappling with the question of how best to respond to requests from employees for accommodations on the basis of childcare or eldercare duties. While there is no one-size-fits-all answer to this question, employers are well advised to keep certain governing principles in mind when facing such accommodation requests.
What is “family status” under human rights law?
Under human rights laws across various Canadian jurisdictions, “family status”, which generally refers to one’s family caregiving duties, is a protected ground. This means that employers are:
- generally prohibited from discriminating against employees on the basis of family status; and
- required to provide reasonable accommodations, to the point of undue hardship, for employees seeking accommodations on that basis.
In practice, this means that employers must take requests for childcare and eldercare accommodations seriously and respond in a structured, good‑faith manner.
When do childcare and eldercare duties trigger the duty to accommodate?
Simply put, if an employee seeks a change to their work hours, shifts, or location of work owing to bona fide childcare or eldercare duties, it triggers the employer’s duty to engage with the employee in a discussion to determine whether and how their requirements can be reasonably accommodated to the point of undue hardship. A few cases decided on this issue in the post-COVID era shed light on best practices for employers to keep in mind when approached with a family status-based accommodation request.
Case law spotlight: Recent decisions on family status
Aguele v. Family Options Inc.: Preference versus genuine need
In Aguele v. Family Options Inc., 2024 HRTO 991 (“Aguele”), the employee was a residential support worker who provided housing and other support services to adults with disabilities. The employee was the single parent of a six-year-old child and advised that they were unable to work certain shifts owing to difficulties in arranging childcare. The employer offered various alternative shift options to meet the employee’s needs. Initially, the employee accepted one of the options, but shortly thereafter requested a partial shift that did not otherwise exist. The employer advised that this request could not be accommodated but expressed a willingness to continue working with the employee to find an existing shift that met their needs. When the employee continued to refuse to commit to any set shift schedule, they were advised that they were welcome to pick up shifts as they became available until further notice.
The employee eventually filed a human rights application alleging discrimination on the basis of family status. The application was dismissed by the Human Rights Tribunal of Ontario (the “HRTO”). In arriving at its decision, the HRTO founds that the employer had made reasonable efforts to engage the employee in accommodation-related discussions. The HRTO also found that many of the employee’s requests for changes to shift appeared to be based on preference rather than need. The employee also failed to provide adequate cooperation in the accommodation process and made accommodation requests that were not reasonable given the nature of the services provided by the employer.
For employers, Aguele confirms that offering reasonable, existing shift options and maintaining an open dialogue can satisfy the duty to accommodate, especially where an employee’s requests veer into preference rather than genuine need.
Cosentino v. Octapharma Canada Inc.: Penalizing a caregiver can be costly
Contrast the employer’s approach in Aguele with the employer’s approach in Cosentino v. Octapharma Canada Inc., 2024 HRTO 860 (“Cosentino”). In Cosentino, the employee served as a sales representative in a “field role,” meaning that they did not ordinarily report to work at the employer’s head office. At the start of the COVID pandemic, the employee’s parent was diagnosed with and treated for cancer. The employee was the only available family member to serve as a caregiver and sought flexible work hours from the employer to transport the parent to appointments.
At first, the employer accommodated the request. However, the employer later became dissatisfied with the employee’s job performance, placed on a Performance Improvement Plan, and required the employee to attend at the corporate head office. During this period, the employer permitted the employee to be away from the office only to the limited extent necessary to transport the parent to medical appointments. Notably, during this time, most of the employee’s colleagues were working from home and were not required to attend at the head office. Moreover, just prior to the pandemic, the employee had received a memo from the employer expressly confirming that the role would “continue to be home office-based.”
The employee filed an application alleging discrimination on the basis of family status. The application was successful and the employee was awarded over $100,000 in damages.
Cosentino is a cautionary tale: treating a caregiving employee less favourably than their peers, particularly in a flexible or remote‑ready environment, can lead to significant human rights liability.
Obsniuk v. Greater Victoria Library Board: Standardized schedules and the undue hardship question
One other useful authority shedding light on this topic is the British Columbia Human Rights Tribunal (the “BCHRT”) decision in Obsniuk v. Greater Victoria Library Board, 2024 BCHRT 276 (“Obsniuk”). In that case, the employer unilaterally imposed a standardized work schedule on all of its employees. When an employee complained that the new schedule interfered with their childcare responsibilities and requested modifications, the employer offered temporary accommodations for a number of months to provide a runway to find adequate childcare. When the employee was unable to secure the required childcare within the allotted time, the employer provided further time-limited accommodations.
Eventually, the employer provided the employee with three options:
- comply with the new timetable;
- resign and take an on-call role; or
- take an unpaid leave for two months to find appropriate childcare.
The employee filed a human rights application alleging discrimination on the basis of family status. The employer requested that the application be summarily dismissed on the basis that it had no reasonable prospect of success. The BCHRT found that there was a sufficient basis for the complaint to proceed to a full hearing. Among other things, the BCHRT noted that it required evidence to determine whether the standardized work schedule was indeed a reasonable imposition and whether the employee’s proposed modifications would have resulted in undue hardship. While no full hearing decision has since been released, the fact that the BCHRT considered the issue worthy of further consideration is, in and of itself, instructive.
Obsniuk is a reminder that employers must be ready to back up standardized schedules and claims of undue hardship with concrete evidence before the Tribunal will side with them.
Practical takeaways for employers facing family status requests
Various best practices for employers can be distilled from the above-noted cases. Responding to family status accommodation requests can be tricky.
- Employers are well advised to approach all accommodation requests with an open mind and an attitude of flexibility where possible.
- In discussing an accommodation request with an employee, efforts should be made to identify the employee’s needs, as distinguished from their preferences.
- Employers should also consider the full context of the work environment, including whether the employee seeking accommodation is being treated less favourably than employees who have no outstanding accommodation requests.
- Finally, employers are well advised to keep the accommodation discussion collaborative and ongoing so as to preserve the employment relationship until undue hardship is reached. While there is no bright-line test for undue hardship, if undue hardship is going to be relied upon, an employer should be prepared to offer a reasonable explanation for why it is justified in doing so.
If you are facing a request for family status accommodation and require assistance, our Labour Relations and Employment Group at Miller Thomson LLP would be happy to assist.
